Looted Culture and the Legal Market

Litigation in relation to property looted by the Nazi regime or sold under duress by communities persecuted by the Nazis continues to keep art lawyers busy. The Holocaust Expropriated Art Recovery (HEAR) Act, passed by the US Congress in 2016 with bipartisan support, created a uniform six-year statute of limitations for Nazi-looting claims.  According to one source, HEAR’s passage “reflects a growing sense that the statute of limitations is a troubling defence to bring up when a repatriation claim is brought forward,” particularly since prior to the act individual states were responsible for deciding their own statute of limitations for expropriated property. The new legislative landscape ensures a more claimant-friendly environment for restitution cases. US art law experts say HEAR has led to a considerable increase in claims brought against museums and insurance companies. 

A London-based lawyer adds that a growing scholarly awareness of the extent of Nazi plunder is also driving demand in the UK market: “The area of Nazi restitution is not becoming less active. The more archives come to light and are digitised, the more claims are coming out. This is an area which will remain active for another ten years, and which spreading also to colonial art and other areas.” 

The provenance of antiquities and colonial-era looted art in British and other Western museums and collections has become ever more controversial in recent years. The case of the Benin Bronzes has illuminated the thorny distinction between repatriation, returning artefacts to a national government, and restitution, returning artefacts to an individual or community. 

Advocacy organisations such as the Restitution Study Group have criticised the repatriation of bronze artefacts looted from the Kingdom of Benin by British colonial forces to the Federal Republic of Nigeria, since the Nigerian Government expressed its intention to return the objects to the Oba of Benin. Descendants of people sold into slavery and paid for by the ‘manillas’ used to make the Bronzes are requesting they be consulted on the ethical restitution of the artefacts. A lawyer familiar with the issue described it as “a very interesting, very emotional debate.” In the context of decolonial restitution, legal issues form part of a complex web of social, cultural, and ethical concerns.  

A US source reports that enforcement of legislation on Native American cultural property has also increased in the last two years. The US Department of the Interior recently amended NAGPRA, requiring museums and Federal agencies to consult indigenous communities when repatriating Native American human remains and cultural items. These legislative changes give more opportunity for different groups to pursue claims, meaning more parties seeking legal counsel for prospective litigation. 

The implication of these developments is that art and cultural property transactions will become more complicated, and litigation more common. More than ever, the onus is on art dealers to perform adequate due diligence on the objects under their care to uphold best practices and minimise risks of litigation. Consulting the Art Loss Register to verify the provenance of an artefact is the first stage of this process. Legal counsel, whether internal or external, will increasingly be relied upon by dealers and collectors as they attempt to negotiate multi-partite disputes and avoid the destructive publicity which often accompanies big-ticket litigation. 

Large and established auction houses are already adapting to the new environment. One industry source notes that “Sotheby's and Christie's now have very sophisticated departments to work with parties to find settlements.” This source also notes that these developments go hand-in hand with consumer buying trends: “as people become more au fait [with these issues], they are more likely to seek legal help.” 

New laws, amendments to existing legislation, and social justice advocacy have combined to invigorate the reclamation debate. “Restitution is not going away,” states an art disputes lawyer in London, and neither is the demand for legal advice.  

The Chambers and Partners High Net Worth Guide ranks firms and individuals with the specific skillsets necessary to address the issues featured in this article, and as such remains a valuable resource for those looking for counsel and representation in relation to restitution cases.