In the course of our work here, I like to call out books and articles that I feel are worthy of praise, usually the in the course of a particular post or issue. After a too-long stay on the corner of my desk awaiting time to read it, I finally finished a book published last year that should be an essential for any collector, or lawyer dealing with clients across borders. Entitled The Art Collecting Legal Handbook (Thomson Reuters), the book is edited by Bruno Boesch and Massimo Sterpi, both notable European practitioners in art and cultural affairs law, at Froriep in London and Studio Legale Jacobacci & Associati in Rome, respectively.
The book opens with several excellent essays. The editors’ introduction poses the question: does art escape law? By way of response, they survey the impact of (in no particular order) rapidly escalating prices, security of title, art fairs, forgeries & authenticity concerns, and the issues that accompany antiquities.
The real genius of this book is in its conception: rather than attempt broad brush answers to these queries, the editors respond with more questions. Specifically, they put this series of identical questions to practitioners around the world:
1) Does your country have regulations on national patrimony, cultural heritage, indigenous art and the like and, if so, what are the essentials?
2) Is your country party to the 1970 UNESCO Convention? What are the striking, distinguishing features of your national implementation legislation?
3) Is your country a party to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and/or any other international conventions or bi-lateral treaties relating to cultural property and their trade?
4) Is the art and cultural property market thriving in your country? Please provide data about trade volumes, dealer presence, etc., where available.
5) What is the due diligence required from a buyer?
6) Are there any particular features of local law that require a buyer’s attention, whether in private treaty purchase or purchase at auction?
7) What are the remedies in case of fake, forgery or counterfeit?
8) Is there any VAT or sales tax and, if so, what are they (distinguishing between goods imported and exported, by local buyer or foreign buyer)?
9) Is there an artist’s resale right (droit de suite) and, if so, how does it apply?
10) Are there any export restrictions, in respect of certain cultural property or otherwise and, if so, what is the procedure?
11) Are there any ‘free ports’ and, if so, what is their regime?
12) What are the rules on import customs and VAT clearance?
13) What is the buyer’s protection against title claims in general? Is good faith relevant and, if so, what are the requirements?
14) What is the buyer’s protection against Holocaust-based claims?
15) What is the buyer’s protection against restitution claims for violation of foreign export restrictions (‘looted property’)? Please explain conditions (and recent practice, where appropriate) on which your country grants assistance to foreign countries seeking restitution of cultural objects.
16) What are the policies, regulations and practices of your country seeking the repatriation of illegally exported cultural property?
17) Is there a regime of anti-seizure guarantee ensuring the safe return of objects on loan to local institutions?
18) Are there artist rights (author’s rights, copyrights) affecting the use of artworks by their owners (eg, public exhibition, reproduction in museum and auction catalogues, and other reproduction)?
19) What is the due diligence required from the seller?
20) Are there any particular standards of due diligence applicable to the trade (dealers and auctioneers), extending to collectors?
21) Is there a regime of temporary import for sale?
22) What are the remedies against a defaulting buyer (private treaty sale and public auction)?
23) What are the essential rules (other than tax rules) and practices in relation to loan, deposit and donation to public museums?
24) What is the legal regime for private foundations and private museums?
25) Is wealth tax levied on art and other cultural property assets?
26) Is there a capital gains tax on their disposal or any other event?
27) Is there a gift and/or inheritance tax?
28) What are the tax breaks, if any, available when loaning/depositing, gifting or bequeathing art or other cultural property to public institutions?
29) What is the taxation of private foundations and private museums, upon creation/endowment and thereafter?
This is an exquisitely-constructed list. Notable lawyers from North America, Europe, the Middle East and Asia respond. Each provides nuanced, expert answers, making the book exactly what it proposes to be: a handbook. This is infinitely more useful than something of greater abstraction. The section on the United States, for example, incudes consideration of both New York and California state law, as well as federal law. Each country also includes a jurisdiction-specific list of important regulations and laws.
The book also includes essays by Julien Anfruns (Director General of the International Council of Museums); Sam Keller (Director of the Fondation Beyeler); Sabina von Arx (Morgan Stanley); and Daniel McClean (Head of Art and Cultural Property at Howard Kennedy FSI).
As noted above, anyone who ever steps foot, phones, or e-mails across a border in the art world, whether as attorney or principal, should have this book as a starting point, at the very least.
