Art Law Report

“ENABLERS Act” Pursues Art Market but Threatens Longstanding Protections Against Government Intrusion

Posted by Nicholas O'Donnell on July 20, 2022 at 1:39 PM

Consistent with efforts in recent years to apply banking laws to the art market, the prospects of passage of a bill in Congress that would apply those rules to a broad category of advisors and attorneys have recently increased. The “ENABLERS Act,” a gimmick of nomenclature apparent from the moment it was proposed, was briefly attached to the annual National Defense Authorization Act, which in keeping with longstanding tradition easily passed the U.S. House of Representatives on July 14, 2022. This tactic, which was also used to extend the reach of the Bank Secrecy Act to antiquities dealers in 2021, greatly enhances the odds that what seemed initially like an unserious publicity stunt might become law. Readers of the Art Law Report will not be surprised at a critical view here of the effort to place a square peg—the art market—into a round hole—bank oversight. This bill is considerably worse, however. Compounding the confusion is that despite widespread coverage about its attachment to the NDAA, the ENABLERS Act as originally proposed is not in the version of the NDAA that passed the House of Representatives last week (it was added then revised, notwithstanding at least one report to the contrary). What was approved for the moment omits the worst parts of the ENABLERS Act. But the perception that it is a done deal ironically may have the effect of lowering vigilance about its prospects. Even if this bill never becomes law, it has come much closer than it should have.

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Topics: Congress, Supreme Court, House of Representatives, AML, Money laundering, FinCEN, Financial Crimes Enforcement Network, Illicit Art and Antiquities Trafficking Protection, suspicious activity reports, Bank Secrecy Act, 31 U.S.C. § 5312(a), National Defense Authorization Act, Treasury Department, ENABLERS Act, NDAA, art market regulation, Tom Malinowski, dealers in antiquities, JOHN HENRY WIGMORE, Berd v. Lovelace, Federal Rules of Evidence, Panama Papers, International Consortium Investigative Journalists, Offshore Leaks database, English Chancery Court, Blackburn v. Crawfords Lessee, Pandora Papers

FinCEN Issues Notice of Proposed Rulemaking to Regulate Dealers in Antiquities

Posted by Nicholas O'Donnell on September 24, 2021 at 11:39 AM

The Treasury Department’s Financial Crimes Enforcement Network (FinCEN) today published in the Federal Register notice of proposed regulations related to the implementation of amendments to the Bank Secrecy Act (BSA) regarding the trade in antiquities pursuant to last year’s Anti-Money Laundering Act. After relative silence over the nine months since the AMLA was passed as part of the National Defense Authorization Act, FinCEN somewhat surprisingly still has not drafted any proposed regulations, but rather seeks additional comment on a series of substantive questions. This effort to gather meaningful data is a positive step, but raises concerns about interested parties’ ability to respond by the 30 day deadline, and whether FinCEN will have time to incorporate those comments into regulations that must be promulgated (after further public notice and comment) by the end of 2021.

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Topics: Antiquities, AML, Money laundering, FinCEN, Financial Crimes Enforcement Network, Bank Secrecy Act, National Defense Authorization Act, Treasury Department, BSA, Anti-Money Laundering Act, Byzantium

FinCEN Signals Suspicion of Art Market Even Before AML Study Begins

Posted by Nicholas O'Donnell on March 23, 2021 at 9:52 AM

In connection with the late-2020 amendment to the Bank Secrecy Act (BSA) to include “dealers in antiquities” as a result of its inclusion in the National Defense Authorization Act (NDAA), the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) has issued a notice of “Efforts Related to Trade in Antiquities and Art.” The notice is a combination of guidance to entities now covered by the BSA, but it is also a potential backdoor around the entities that Congress chose not to regulate with respect to potential or perceived money laundering risks: art dealers. It also raises concerns about the objectivity of the forthcoming study of the art market that Congress instructed FinCEN to conduct. In either event, it is further evidence that momentum continues to gather for stricter oversight and regulation of the U.S. art market, and the importance of the art trade demonstrating more transparency and diligence if it hopes to modify or mitigate that regulation.

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Topics: The Art Newspaper, Nazi-looted art, Antiquities, Terrorist financing, Responsible Art Market initiative, Money laundering, FinCEN, A Tragic Fate, Financial Crimes Enforcement Network, Illicit Art and Antiquities Trafficking Protection, suspicious activity reports, Corporate Transparency Act of 2019, Bank Secrecy Act, National Defense Authorization Act

Event—Innovation and change in a Responsible Art Market

Posted by Nicholas O'Donnell on January 8, 2021 at 9:59 AM

As potential regulation of the art market gathers in the United States, the increasing relevance of the Responsible Art Market Initiative is ever clearer. And while we will miss gathering in Geneva for the first time in several years, RAM is undeterred. Join us on Friday January 29, 2021 for a virtual edition of the annual RAM event, this year entitled “Innovation and change in a Responsible Art Market.” The program follows below (including a virtual networking opportunity), and registration by 27 January 2021 can be accomplished using the following link: www.responsibleartmarket.org/event-registration

See you then. Until next year, this will have to suffice for ein Stückchen der Schweiz from last February:


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Topics: Anne Laure Bandle, Reibpartie, Pierre-Auguste Renoir, Art Law Foundation, New York University, TEFAF, Geneva, Sandrine Giroud, Lalive, Albert Martin Wolffson, Eugene Driker, Sullivan & Worcester LLP, Henry Zacharias, Copyright, EPA Victory, Sullivan and Worcester LLP, Bonhams, Nicholas M. O'Donnell, Elmyr de Hory, Mathilde Heaton, RAM, Responsible Art Market initiative, Phillips, Stephenson Harwood, Sullivan, Jonathan Petropoulos, Nanne Dekking, Artory, National Defense Authorization Act, Nicolas Galley, Borel & Barbey, Valentina Volshkova, Masterworks, Tom Christopherson, Melanie Damani, Pace Gallery, University of Zurich, Masha Golovina, Hottinger Group, Freya Simms, LAPADA, The Association of Art and Antiques Dealers, Audry Li, Zhong Lun Law Firm, Shanghai

Congress Steps up Oversight of Art and Antiquities Markets

Posted by Nicholas O'Donnell on January 4, 2021 at 4:16 PM

On January 1, 2021, the U.S. Senate overrode President Trump’s veto of the National Defense Authorization Act for 2021 (NDAA), a bill that (perhaps surprisingly) included rules affecting the art market. Specifically, the new law subjects antiquities dealers to the provisions of the Bank Secrecy Act, requires registration of the ultimate beneficial ownership of limited liability companies, and directs the Financial Crimes Enforcement Network (FinCEN) at the Department of the Treasury to conduct a study of money laundering in the art market. Long considered but only now passed, the bill is a significant step into regulating the U.S. art and antiquities market, though still far less invasive than the European Union’s current approach. The new regulations raise questions about the cost benefit balance of compliance, but leave no doubt after last year’s Senate report that regulators have the art market in their sights and the market must respond if it wants to have a say in the oversight that is sure to come.

Readers here will be familiar with our support for and participation in the Responsible Art Market Initiative’s common-sense approach to diligence and responsible practices, and this development is no exception. As I tried to spotlight in the RAM New York webinar we hosted last fall, whatever one thinks of the regulations or the regulators, these things are happening. And while we expressed skepticism that FinCEN is the right body to conduct a study of the art market, the market has a choice here. We can complain, or we can get involved in the dialogue. I would rather be at the table in the discussion than outside the room. The FinCEN study may not be ideal, but it is an opportunity that responsible actors will ignore at their peril.

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Topics: OFAC, European Union, Terrorist financing, Responsible Art Market initiative, Money laundering, FinCEN, Financial Crimes Enforcement Network, Office of Foreign Assets Control, Bank Secrecy Act, Department of the Treasury, 31 U.S.C. § 5312(a), limited liability companies, National Defense Authorization Act, President Trump

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About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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