Mediation of Art & Cultural Heritage Disputes

As a practising Barrister, I am developing the mediation of Art and Cultural Heritage Disputes as a niche practice area.

I am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law, and am undertaking training to become a Mediator in July 2021.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching a new book for publication in 2024,  provisionally entitled,

‘Mediation of Art and Cultural Heritage Disputes.’

My aim is to write a practical handbook for mediators; mediation advocates; and parties (including States).

For more information please visit the ‘Mediation of Art and Cultural heritage Disputes’ page at www.ihtbar.com

Chapter structure (work in progress)

  1. Introduction.
  2. Classification of Art and Cultural Heritage Disputes.
  3. Parties: (i) Non-State Parties (including Artists, Trustees, Private Museums, Galleries, Auction Houses, Dealers, and Art Collectors); and (ii) State Parties (including Museums).
  4. Legal Relationships and Duties (including: Contract; Tort; Bailment; Agency; and in Equity i.e. Fiduciary Duties).
  5. Artists Rights and Intellectual Property.
  6. Misattribution of Art at Auction (including the problem of Duality and Conflicts of Interest, e.g. price – where an Auction House acts for both seller and buyer).
  7. Civil Fraud involving art (including: Deceit; Conspiracy; Unlawful Interference;  and Conversion).
  8. Equitable Claims (including: Breach of Trust; Breach of Fiduciary Duty; Knowing Receipt; and Dishonest Assistance).
  9. Liability through others (including: Attribution; Piercing the Corporate Veil; and Joint-liability in tort).
  10. Proof and Evidence at Trial.
  11. Civil Law Remedies (including: Disclosure Orders; Search Orders; Injunctions; Damages; Equitable Compensation; Proprietary Remedies; Tracing; Declarations;  and Restitution).
  12. Defences: (i) Contractual Defences – exclusion clauses;  and (ii) Procedural Defences including: (a)   Jurisdiction, Applicable Law (and rules of private international law – conflict of laws); (b)  Immunity from Forfeiture; (c) State Immunity Rules; and (d)  Limitation.
  13. Transnational Art Litigation (including International Trust Litigation).
  14. Cultural Heritage Law.
  15. International Humanitarian Law.
  16. The Law of Underwater Cultural Heritage (including Shipwrecks) and of Maritime Archaeology.
  17. Legal and moral claims for the return of cultural objects (including the repatriation of art stolen by the Nazis in Europe during WW2; and of cultural property stolen in Italy, Greece, Egypt, Africa, Iraq, Syria, Iran, India, China, Cambodia, Australia, and South America).
  18. Diplomatic Dispute Settlement and Inter-State Conciliation.
  19. Arbitration.
  20. Mediation.
  21. The psychology and dynamics of settlement, i.e. the motivations, risks (litigation, commercial, and reputational), and in a cultural heritage dispute – political opportunities, that typically drive parties to reach a settlement.
  22. Confidentiality.
  23. Mediation Ethics.
  24. Mediator Tools and Strategies.
  25. Constructing a matrix of: property; claims; interests; and values, in dispute.
  26. Designing a negotiation process (including agreeing negotiation ethics and principles).
  27. Developing a settlement road-map.
  28. Road-blocks.
  29. Innovating solutions by applying: fiduciary principles: norms; and practical ethics.
  30. Recording Terms of Agreement and Settlement

Appendices

Glossary.

Case Studies.

Taxonomy of norms.

Mediation Methodology (to be developed).

Precedents

Mediation Agreements.

Commercial analysis (private art dispute).

Litigation risk analysis.

Position statements.

Confidential note for the mediator.

Dispute resolution matrix (i.e. framework of issues and social, political, and economic values), i.e. a map/blueprint of the dispute.

Project management work break-down structure (Venn diagram), i.e. to show  the relationship between issues and values in dispute.

Dispute resolution critical path analysis, i.e. to agree negotiation milestone events.

Joint statement of aims and negotiation principles.

Settlement roadmap for implementation.

MOU’s & Settlement Agreements.

Practice Notes (to be contributed by other practitioners)

How the Art market is structured and works (including: auctions; private treaty sales; the complexities and nuances of art market practice; the illicit market; business ethics and reputational risk management in theory and practice).

Art Due Diligence (including forensic tests and analysis).

Art Crime and Offences (including: False Representations and Deception; Failure to Disclose Information; Theft; Smuggling; and Offences under the Forgery and Counterfeiting Act 1981; and Fraud Act 2006).

The UNESCO-Based Conventions.

ICOM-WIPO Art and Cultural Heritage Mediation.

CAfA – The Court of Arbitration for Art.

Introduction

In both art and cultural heritage disputes, mediation is the norm..

Art disputes

In an art dispute, the court will apply the preponderance of evidence standard.  The judicial function is not to find an absolute truth but merely a preponderant truth. Judges generally lack the connoisseurship to endorse an expert’s judgment by eye, i.e. judges must rule on questions of art authenticity by strongly relying upon expert evidence, without having the requisite skill and knowledge to evaluate and critically assess such evidence. Consequently, in a misattribution dispute, instead of rendering a judgment based upon the experts’ arguments substantiating a specific attribution,  a judge may decide that a specific expert is more eminent and established, and consequently that expert’s attribution will prevail.

In a breach of duty claim against an auction house, the diligence test applied by English courts is based upon a fiction – the reasonable auctioneer who uses adequate care in the execution of his duties and obligations. This has two drawbacks. The first is when no expert consensus existed at the time of a wrong attribution. The second, is the circularity and contingency of scholarship, exposing attributions to divergences amongst scholars and to continuous change.

Cultural Heritage Disputes

To the extent that geography is a military and political constraint, cultural heritage is a third dimension that is part of the equation in resolving a geo-political dispute. Critically, it allows for the application of fiduciary principles in the negotiation of a sustainable peace. These principles have a provenance that stretches back to antiquity.

In cultural heritage disputes there is a philosophical and legal nexus between the existence of ethical standards and norms of behaviour in relation to antiquities and cultural heritage (which includes landscape). Because formulating international ‘ethical’ duties of care and standards (i.e. framing and institutionalisation), that are capable of practical implementation, monitoring, and enforcement involves multi-lateral diplomacy, mediation  is an incubation tool in cultural heritage diplomacy.

Norms are linked to the existence of fiduciary duties. This is an evolving question that is linked to the concept of global fiduciary governance in the form of treaty-making and multi-lateral co-operation.

My theory is that when art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns A under private law that is also CP, is also a custodian of the object [‘CPO’]. In which case, fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’] (including an underwater site). If P is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty.  The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.

There is also a relationship between the human environment, development and culture. The commentary to the preamble to the Draft International Covenant on Environment  and Development (5th edition, IUCN Switzerland 2015) states:

‘All civilisations spring from and are shaped by the quality of their surrounding natural elements [and that] the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia. … Art, literature and science cannot be understood, or even imagined, without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’

Since the Declaration of the UN Conference on the Human Environment, Stockholm, June 1972  (the ‘1972 Stockholm Declaration’) stated that ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled …’, and this ‘special responsibility’ includes a duty to restore and maintain the integrity of the environment, the existence of fiduciary duties in relation to cultural heritage is linked to wider: environmental; strategic; legal; and policy issues, i.e. international law applying to activities on the high seas and on the continental shelf.

The big question is ‘What ethical standards of behaviour do these duties give rise to?’   This is linked to:

(i)      international humanitarian law;

(ii)      the protection and preservation of cultural property; and

(iii)     illicit trafficking of art and antiquities.

The problem of illicit trafficking is further linked to:

(a)          organised crime;

(b)          money-laundering; and

(c)          terrorist financing.

Because cultural identity is considered to part of human dignity, it is linked to human rights, i.e. cultural heritage is of crucial importance to individuals and communities as part of their identity. Since cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

That is why mediation is a powerful tool in cultural heritage diplomacy, and at its centre are ‘norms’ of behaviour, which theoretically apply with equal vigour to private law claims, i.e. there  is a bridge between public international law claims, and private law claims when art becomes cultural heritage. That bridge is the fiduciary doctrine of Jus Cogens.

This is therefore not only a book for practitioners about mediation, it is also a book about the fundamental values humanity attaches to art and cultural heritage, because those values can translate into norms of behaviour that can be building blocks for reaching agreement in a mediation about art and cultural heritage between both private parties and states.

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Al Malki v. Reyes [2017] UKSC 61: https://www.supremecourt.uk/cases/uksc-2016-0023.html

Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd [2012]: http://www.bailii.org/ew/cases/EWHC/Ch/2012/2198.html

Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62: https://www.supremecourt.uk/cases/uksc-2015-0063.html

Drake v Thos. Agnew & Sons Ltd [2002]: http://www.bailii.org/ew/cases/EWHC/QB/2002/294.html

Elidor Investments SA v. Christie’s Manson Woods Ltd [2009] EWHC 3600

Sotheby’s v Mark Weiss Ltd & Ors [2020] EWCA Civ 1570 (23 November 2020): Sotheby’s v Mark Weiss Ltd & Ors [2020] EWCA Civ 1570 (23 November 2020) (bailii.org)

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Okpabi and others (Appellants) v Royal Dutch Shell Plc and another [2021]

QSN Paper Co. Chartwell Shipping Ltd [1989] 2 SCR 683.

South Australia Asset Management Corp v. York Montague Ltd [1997] AC.191

Thomson v Christie Manson & Woods Ltd & Ors [2005]: http://www.bailii.org/ew/cases/EWCA/Civ/2005/555.html

Thwaytes v Sotherby’s [2015]: http://authenticationinart.org/pdf/artlaw/Thwaytes-v-Sothebys1.pdf

Statutes

Dealing in Cultural Objects (Offences) Act 2003: https://www.legislation.gov.uk/ukpga/2003/27/contents

Limitation Act 1980: https://www.legislation.gov.uk/ukpga/1980/58

The Artist’s Resale Right Regulations 2006: http://www.legislation.gov.uk/uksi/2006/346/contents/made

Sale of Goods Act 1979: https://www.legislation.gov.uk/ukpga/1979/54

Tribunals Courts and Enforcement Act 2007 (Part 6): https://www.legislation.gov.uk/ukpga/2007/15/part/6

Treaties

Council of Europe Declaration on Jurisdictional Immunities of State-Owned Cultural Property: https://www.coe.int/en/web/cahdi/news-cahdi/-/asset_publisher/FL6bNvghtkKV/content/declaration-on-jurisdictional-immunities-of-state-owned-cultural-property

The Granada Convention 1985 (The Convention for the Protection of Architectural Heritage in Europe): https://rm.coe.int/168007a087

The Hague Convention 1954 (The Convention for the Protection of Cultural Property in the Event of Armed Conflict): http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html

The Paris Convention 1954 (European Cultural Convention): https://www.coe.int/en/web/culture-and-heritage/european-cultural-convention

The Valetta Convention 1992 (The Convention for the Protection of the Archaeological Heritage of Europe): https://www.coe.int/en/web/culture-and-heritage/valletta-convention

The World Heritage Convention 1972: http://whc.unesco.org/en/conventiontext/