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.
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
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:
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
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.
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
Topics: sanctions, Pryor Cashman LLP, Pippa Loengard, Irina Tarsis, Sullivan & Worcester LLP, Suzanne Gyorgy, Megan Noh, Center for Art Law, RAM, Responsible Art Market initiative, Money laundering, CitiBank, Birgit Kurtz, Nanne Dekking, Artory, Lockton Companies, Andrew Schoelkopf, Elaine Wood, Charles River Associates, Jill Arnold Bull
A recent report by the U.S. Senate Permanent Subcommittee on Investigations (headlined by Chairman Senator Rob Portman, Republican of Ohio, and Ranking Member Tom Carper, Democrat of Delaware) has drawn widespread attention for its damning statements about the international art market. Focusing on purchases of art from major auction houses by Arkady and Boris Rotenberg, two Russian nationals described as “oligarchs” by the report, the Subcommittee makes a series of pronouncements about the supposed prevalence of money laundering in the art market, and the need for regulation to address this perceived problem. Yet upon closer read, the report is a recycling of clichés about the art market, a detailed description about the considerable diligence by the auction houses far beyond what any even theoretical regulation would require (thus begging the question of what lesser regulation would accomplish), and no discussion or empathy at all for the vast majority of small art businesses that could not possibly comply with such regulation and stay in business, let alone actually combat money laundering. In other words, in concluding that two men laundered money, the Senate committee deduces that the practice is rampant. This hardly follows as a matter of logic. Far from supporting the case for sweeping financial regulation of the art market, the report unintentionally makes the opposite point.
Topics: OFAC, Vladimir Putin, Uniform Commercial Code, House of Representatives, New York Times, Responsible Art Market initiative, Money laundering, FinCEN, Financial Crimes Enforcement Network, Permanent Subcommittee on Investigations, Boris Rotenberg, oligarch, shell companies, suspicious activity reports, Banking Secrecy Act, Politically Exposed Persons, Arkady Rotenberg, Treasury, ultimate beneficial owner, UBO, Corporate Transparency Act of 2019, Tom Carper, Office of Foreign Assets Control, Rob Portman
As promised, here are the details and registration information for the Responsible Art Market initiative's inaugural US event on May 23, 2019 at Columbia University. The preliminary program is below (some sponsors still pending), sign up today today to attend (free)!
Topics: Jane Levine, Switzerland, Appraisers Association of America, Suzanne Gyorgy, Sotheby's, Megan Noh, ARTnews, Art Law Centre, University of Geneva, Responsible Art Market initiative, Justine Ferland, CitiBank, PAIAM, Sarah Douglas, Birgit Kurtz, Gibbons P.C., Rebecca Fine, Athena Art Finance Corp., Pryor Cashman, Linda Selvin, Jennifer Mass, Scientific Analysis of Fine Art, LLC
Readers of the Art Law Report know that for several years running now, I have enjoyed events in Geneva organized by the Art Law Foundation and the Responsible Art Market Initiative in January/February. I am happy to report that this year is no exception. RAM is presenting its latest event “A Responsible Art Market in Practice,” to be held on Friday February 1, 2019 at the Palexpo in the venue of the artgenève fair. After joining the RAM Taskforce and contributing to its Toolkit and country guide for the US, I am pleased to be presenting one of the case studies, in between a roster of distinguished speakers and experts. I hope to see you there!
Topics: Art Law Foundation, The Art Newspaper, Geneva, artgenève, Sandrine Giroud, Lalive, Irina Tarsis, Sullivan & Worcester LLP, Suzanne Gyorgy, Georgina Adam, Nicholas M. O'Donnell, Art Law Centre, Mathilde Heaton, Jean-Bernard Schmid, Responsible Art Market initiative, Phillips, Financial Times, Palexpo, Justine Ferland, Carine Decroi, Artcurial, Philippe Davet, CitiBank, Aude Lemogne, Ochsner & associés, Roland Foord, Stephenson Harwood, Association Marché d’Art Suisse, Blondeau & Cie, Andreas Ritter
Casting aspersions about the art market is a popular pastime. And no doubt there is much about the commercial art world that invites this criticism, not least a tendency towards secrecy (or discretion, depending whom you ask). Sometimes these criticisms lean into suggestions of rampant criminality or money laundering, for which there is actually scant support. That is to say, there is a common suggestion that the lack of a single regulatory scheme over the art market (which is not to say it is unregulated, another misconception) is evidence of participation by dealers or collectors in illicit activity. In fact, as we have written before, the far greater risk is of being used by bad actors trying to launder money through art transactions. For this and other reasons, we were proud to assist in drafting the Responsible Art Market initiative U.S. country guide and the more recent toolkit that was launched in January.
Topics: OFAC, Christie's Inc., Responsible Art Market initiative, Money laundering, AML Program, Know your customer, H.R. 5886, Luke Messer, Office of Foreign Asset Control, Illicit Art and Antiquities Trafficking Protection, KYC
I was pleased to attend last week in Geneva “Building an Art Market for the Future—Guidelines for Countering Money Laundering and Terrorist Financing Threats” hosted by the Fondation pour le Droit d’Art (Art Law Foundation) and the Art Law Centre of the University of Geneva. The conference was the official launch of the Responsible Art Market initiative, and offered valuable, market-focused discussion about the risks of money laundering and terrorist financing in the art market. Refreshingly, the day’s panel discussions focused on best practices and goals, rather than the oft-heard lamentations about problems with the art market. The implicit point that came through was a powerful one: as both private sellers and law enforcement speakers explained, art dealers are not engaged in large-scale shadowy financial dealings. But art dealers and buyers are at serious risk of being used by criminals engaged in money laundering, which can have serious consequences. Because willful blindness is no defense, the conference and the initiative provided valuable practical advice.
Topics: Pierre Gabus, Anne Laure Bandle, Art Dealers Association of Switzerland, Art Law Foundation, Geneva, Sandrine Giroud, Luxembourg, Switzerland, Art Law Centre, University of Geneva, AML, Terrorist financing, Sylvia Furrer Hoffmann, Ricardo Sansoletti, Ursula Cassani, Simon Studer, Mathilde Heaton, Fondation pour le Droit d’Art, Jean-Bernard Schmid, Rakhi Talwar, Ralph Wyss, Responsible Art Market initiative, Money laundering, Stiftung Kunsthalle, Bern, Deloitte