As co-chair (with Birgit Kurtz) of the New York chapter of the Responsible Art Market Initiative, I hope you will join us for a two-part webinar focusing on data in the art market. The webinars will take place on October 30, 2024, and November 6, 2024. Registration is available here.

Topics: Emigrant Bank Fine Art Finance, Yale University, Suzanne Gyorgy, Winston Art Group, Responsible Art Market initiative, Nanne Dekking, Artory, Charles Moffett Gallery, ArtTactic, Magnus Resch, Minerva Pinto, Goldman Sachs, Ann Tenenbaum, Erica Barrish, EAB Fine Art Services, Charles Moffett, Jr., Anders Petterson

I am pleased to announce that I will be among the speakers in Milan on September 30, 2024 at a conference organized by the Universitá degli Studi della Campania Luigi Vantivelli and the UNESCO Chair on Business Integrity and Crime Prevention in Art and Antiquities Market: “Preventing Art Crimes Through Regulation and Self-Regulation.” To be held at the Palazzo Visconti, the conference will offer a full day of expert speakers on the topics of Updating the UNESCO International Code of Ethics for Dealers in Cultural Property; Codes of Conduct, Codes of Ethics and Other Soft Law Tools in Cultural Heritage (in which I will be a discussant); the Legal Impact of Due Diligence Procedures and Acquisition, Anti-Money Laundering in the Art Market; and Industry Practices and Judicial Applications: Lessons to be Learned. The program is below, and registration may be found here.

As the title and expertise of the participants suggest, this will be an excellent broad view of the question of regulation in cultural property, and the extent to which market participants can guide the outcome. It will focus on public-private partnerships for the prevention of wrongdoings against cultural property, and specific attention will be devoted to the role that codes of conduct, due diligence, and KYC procedures play in this area. I am excited to be a part of the event and see many old friends. I hope that if you are nearby you will join us, or attend remotely if you are not.

Topics: Anne Laure Bandle, Irina Tarsis, Saskia Hufnagel, Events, UNESCO, ARCA, Center for Art Law, Leiden University, Borel & Barbey, Giuseppe Calabi, Sunna Altnoder, Louise Malécot, Stefano Manacorda, Universitá Luigi Vantivelli, Tess Davis, Antiquities Coalition, Alessandra Donati, University of Milan Bicocca, Toshiyuki Kono, Kyushu University, Marc Balcells, Marco Colacurci, Lynda Albertson, Association for Research on Crimes Against Art, Rena Neville, Corinth Consulting Ltd., Arianna Visconti, Universitá Cattolica del Sacro Cuore, Umit Turksen, Coventry University, Anna Mosna, Erika Bochereau, CINOA, Riccardo Ercole Omodel, University of Palermo, Eugenio Fusco, Milan Public Prosecutor, Guido Carlo Alleva, Giuseppe Catalano, Assicurazioni Generali S.p.A., Antonella Crippa, Intesa Sanpaolo, Palazzo Visconti, University Oberta de Catalunya, University of Sydney

The U.S. Court of Appeals for the D.C. Circuit recently dismissed a long-running dispute against Russia concerning the library of the Lubavitcher Rebbe (the Library), a collection of books and papers once held by the then-Rebbe of the Chabad Lubavitch movement. Agudas Chasidei Chabad of United States v. Russian Fed’n, 110 F.4th 242 (D.C. Cir. 2024) (Chabad 2024). Brought under what is known as the expropriation exception, 28 U.S.C. § 1605(a)(3), of the Foreign Sovereign Immunities Act (the FSIA), the case has involved Russia’s withdrawal from the case and default, sanctions of $50,000 per day for non-compliance and a judgment of more than $175 million, a retaliatory embargo on cultural property exchange that continues to this day, and multiple appeals.

In the most recent decision, the court of appeals held that the second element of the expropriation exception (what is known as the commercial nexus requirement) was not met and therefore deprived the court of any jurisdiction. Specifically, the D.C. Circuit held that if the defendant is the foreign state, the expropriation exception may only be invoked if the property is physically present in the United States (which the Rebbe’s library is not). The Supreme Court has declined to review two relatively recent cases that reached the same conclusion, it will bear watching of the plaintiffs seek further review now given a circuit split with the 9th Circuit on the issue.

Topics: de Csepel, Immunity from Seizure, Foreign Sovereign Immunities Act, Supreme Court, Agudas Chasidei Chabad, Russian Federation, FSIA, expropriation exception”, sovereign immunity, Russian State Library, Chabad, Federal Republic of Germany, Welfenschatz, D.C. Circuit, Federal Republic of Germany v. Philipp, Simon v. Republic of Hungary, Lubavitcher Rebbe, Schubarth, Judge Randolph, Brett Kavanaugh, Judge Griffith

I was proud to advise the Allentown Art Museum, which announced today that it has reached an agreement with the heirs of Henry and Hertha Bromberg concerning Portrait of George, Duke of Saxony by Lucas Cranach the Elder and his workshop. Pursuant to the agreement, the painting will be auctioned at Christie’s in New York next year following educational programming focusing on the painting’s history. The Museum’s press release can be read here. The story was also addressed in an excellent article in The New York Times by Graham Bowley.

(Portrait of George the Bearded, Duke of Saxony, by Lucas Cranach the Elder and workshop)

Topics: Graham Bowley, Paris, Washington Conference Principles, Christie's, Hamburg, Lucas Cranach the Elder, The New York Times, Nazi-confiscated art, Henry Bromberg, Hertha Bromberg, Martin Bromberg, Max Weintraub, Reichsfluchtsteuer, Allen Loebl, F. Kleinberger Gallery, property inventory, Allentown Art Museum, Portrait of George the Bearded Duke of Saxony, Porträt des Georg dem Bärtigen Herzog von Sachsen, Vermögensverzeichnis, Wildenstein

I attended today’s press conference at District Attorney Alvin Bragg, Jr.’s office in Manhattan at which a drawing by Egon Schiele, Seated Nude Woman, Front View, was transferred to the heirs of Fritz Grünbaum. I represent the family of Gustav (“Gus”) Papanek, who relinquished the drawing to the District Attorney earlier this year. This case spotlights, once again, the breadth of Nazi crimes more than 80 years later. The Grünbaum story has rightly received considerable coverage (including a chapter in my book A Tragic Fate—Law and Ethics in the Battle Over Nazi Looted Art), my clients’ story is not widely known. I was honored to represent them today and throughout the process.

(Today's ceremony)

Topics: Egon Schiele, The New York Times, Vienna, Bern, A Tragic Fate, Eberhard Kornfeld, Fritz Grünbaum, Gustav (“Gus”) Papanek, Galerie Gutekunst & Klipstein, Alvin Bragg Jr., Seated Nude Woman Front View, Ernst Papanek, Helene Papanek

I was honored to be among the speakers this week at the United States Holocaust Memorial Museum on March 5, 2024. Convened by the World Jewish Restitution Organization and the U.S. State Department, the event announced the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art (available here), and a report (available here) by the WJRO on the status of restitution progress worldwide. The Best Practices were a collaboration by the network of Special Envoys on Holocaust issues, in recognition of the 25th anniversary of the Washington Conference Principles on Nazi-Confiscated Art in 1998.

Topics: Washington Principles on Nazi-Confiscated Art, 1998 Washington Conference on Holocaust-Era Assets, WJRO, State Department, Leiden University, Stuart Eizenstat, Claims Conference, Antony J. Blinken, Gideon Taylor, Colette Avital, Michael Herzog, Ellen Germain, Dr. Wesley Fisher, Dr. Ruth J. Weinberger, Prof. Dr. Meike Hopp, Technische Universität Berlin, Lord Eric Pickles, Prof. Leora Bilsky, Tel Aviv University, Dr. Evelien Campfens

The Kernochan Center for Law, Media, and the Arts at Columbia Law School, the U.S. Committee of the Blue Shield, and the New York chapter of the Responsible Art Market Initiative (of which I am co-chair with Birgit Kurtz) have organized an event on March 1, 2024 to be held at Columbia Law School entitled “Protecting Cultural Property: The 1954 Hague Convention at 70.”

Topics: Jane Levine, Philippa Loengard, Kernochan Center for Law Media and the Arts, DePaul University College of Law, Columbia Law School, Sotheby's, Patty Gerstenblith, Responsible Art Market, Lucian Simmons

I am pleased to be taking part in a symposium at the University of Kansas School of Law in Lawrence, Kansas, on February 23, 2024, entitled “A Museum's Purpose.” Organized by KU Law and the Kansas Journal of Law & Public Policy Symposium, the symposium will feature presentations on a variety of cultural property topics. I will discuss a paper I am writing about the emerging concept of Fluchtgut—flight goods, or property sold by Jewish owners fleeing Nazi persecution but after reaching neutral or free territory. Other speakers include Craig M. Blackwell, associate general counsel, Smithsonian Office of the General Counsel; Col. Scott DeJesse, senior heritage and preservation officer, U.S. Department of Defense; Derek Fincham, law professor, South Texas College of Law Houston; Michael Hoeflich, John H. & John M. Kane distinguished professor of law, University of Kansas School of Law; MacKenzie Mallon, provenance specialist, The Nelson-Atkins Museum of Art; Lauren Van Schilfgaarde, assistant professor of law, UCLA School of Law; and Jonathan Zwibel, deputy associate chief counsel, U.S. Customs and Border Protection.

Topics: Events

The Responsible Art Market Initiative will hold its annual conference next week in Geneva on January 25, 2024 (Thursday) at the art fair artgenève. RAM, which has increasingly been recognized as an industry leader in best practices in the art market, will present a keynote speaker and two discussion panels (one of which I will chair). The program and registration are available here.

After introductory remarks by Anne Laure Bandle of Borel & Barbey, Anthony Meyer of Galerie Meyer Oceanic & Eskimo Art in Paris will deliver the keynote address.

Next, I will moderate a panel of experts to discuss the current antiquities market. We will present and analyze some updated guidance to the RAM Due Diligence toolkit to address the antiquities market specifically.

The final panel of the day will discuss artificial intelligence (AI) and at. Few topics are as salient today as AI.

RAM’s events are always a unique opportunity to gather with art market participants from many sectors of the market. I look forward to seeing you in Geneva!

Topics: Anne Laure Bandle, Maastricht, TEFAF, Paris, Geneva, Mathilde Heaton, Jean-Bernard Schmid, Responsible Art Market initiative, Borel & Barbey, Phillips Auctioneers, Lausanne, artgenève, Anthony Meyer, Galerie Meyer Oceanic & Eskimo Art, Will Korner, Isabelle Tassignon, Fondation Gandur pour l’Art, Eric Drass, shardcore, Nicolas Henchoz, EPFL+ECAL Lab, Alexandre Jotterand

The U.S. Court of Appeals for the 9^th Circuit ruled on January 9, 2024 that the Thyssen-Bornemisza Collection Foundation in Madrid is the owner of Rue Saint–Honoré, après-midi, effect de pluie (1892) by Camille Pissarro, a painting sold by German Jew Lilly Cassirer under Nazi duress. After the Cassirer family prevailed in the Supreme Court in 2023 that the 9^th Circuit had previously applied the wrong legal test, the question before the 9^th Circuit was the choice of which law to apply. In any case where the parties and subject matter are in different jurisdictions (or within overlapping jurisdictions like state and federal), a court must first decide which body of law to apply in analyzing a particular case. Here, the 9^th Circuit ruled that Spanish law applied because Spanish law would be harmed more than California law if the other body of law applied (known as comparative impairment analysis). This, in turn, led to the holding that the Thyssen-Bornemisza Collection Foundation acquired good title after holding the painting for long enough that prior claims were extinguished.

The decision is thinly-reasoned. It looks to the “place of relevant conduct” as paramount to choosing applicable law, but concluded that the only relevant conduct was Spain’s purchase in 1993 of the Baron Hans Heinrich Thyssen-Bornemisza’s collection. Not the Baron’s Swiss residence, not his purchase of a stolen painting in New York (not located in Spain when last we checked) in 1976, not the earlier (New York) sale by Knoedler Gallery, nor the painting’s passage through California in the 1950s, nor the source of the defect in the first place: Nazi Germany. Rather, The court insultingly referred to Holocaust survivor and refugee Claude Cassirer’s life in California as a “fortuity.” As the late Justice Antonin Scalia might have said, “pure applesauce.”

The upshot is that a state (Spain, through the TBC) that did not acquire good title to a painting that was indisputably dispossessed by the Nazis will (barring further review) keep this ill-gotten property. Spain should have returned the painting the first time it was asked to do so. Digging its heels in over 18 years of litigation is a mockery of the commitments Spain made in the 1998 Washington Principles on Nazi-Confiscated Art. Nothing about Spanish law is impaired by refusing to honor a transaction at the direction of the Nazis.

The family has vowed to fight on, and good for them. As I often tell people as an example to frame this issue and this case, the picture below is of the painting in Lilly’s home. Now imagine that this was your home, and the very worst person you knew came in and demanded it because he knew you had no power to resist. Would you give up?

Topics: Lilly Cassirer, Rue Saint-Honoré après-midi effet de pluie, Claude Cassirer, Foreign Sovereign Immunities Act, California, Washington Principles on Nazi-Confiscated Art, Spain, FSIA, Camille Pissarro, Ninth Circuit Court of Appeals, Cassirer v. Thyssen-Bornemisza Collection, Jakob Scheidwimmer, Sydney Schoenberg, Eugen Kampf, Antonin Scalia, Hans W. Lange, Federal Republic of Germany v. Philipp, Philipp v. Stiftung Preussischer Kulturbesitz, Simon v. Republic of Hungary, choice of law, Baron Thyssen-Bornemisza