Concluding Remarks - Resolving disputes in cultural property = La résolution des litiges en mat

49 Associated Press, Israel Museum Returns Art to Artist’s Heirs, Ynetnews.com, 9 September 2011, available at: http://www.ynetnews.com/articles/0,7340,L-4119931,00.html (28.02.2012).

50 Ibid.

51 Press Release, Herrick, Feinstein LLP, Breakthroughs on Major Holocaust Claim (14 March 2005), available at: http://www.herrick.com/siteFiles/News/06B0FACB551C88A15EBCA53E1ED18477.

pdf (28.02.2012).

52 MARTIN BAILEY, How The Art Newspaper Changed the Law, The Art Newspaper, 10 November 2010, available at: http://www.theartnewspaper.com/articles/How-i-The-Art-Newspaper-i-changed-the-law/21774 (28.02.2012).

53 Ibid.

54 Department for Culture, Media and Sport, Spoliation Advisory Panel, http://www.culture.

gov.uk/what_we_do/cultural_property/3296.aspx (28.02.2012).

55 Ibid.

56 BAILEY (cit. n. 52); see also Report of the Spoliation Advisory Panel in Respect of a Renewed Claim by the Metropolitan Chapter of the Benevento for the Return of the Beneventan Missal Now in the

It should be noted, however, that these successful negotiations stand out in a larger pool of art disputes that, whether partially or in whole, were resolved only after resorting to litigation. In my experience, it has been the exceptional instance in which a party has agreed to return a work of art without recourse to some sort of court action. Remember that Italy had sought the Morgantina silver from the Metropolitan for more than ten years. And the Weary Herakles did not make its trip home until almost twenty years after we proved the two pieces were from the same statue and negotiations then failed. But some United States museums have become more cooperative in recent times. For exam-ple, in March 2011, a long-standing claim against the Getty Museum in Los Angeles was resolved with the return of a looted Goudstikker painting, Pieter Molijn’s “Landscape with Cottage and Figures,” to the family, marking the first voluntary return to the Goud-stikker heir from a United States museum⁵⁷. Even so, it must be underscored that many American museums are still resisting Holocaust claims, very often asserting technical defenses like the statute of limitations. And the vast majority of questionable artifacts in American and foreign museums have not been the subject of agreements that saw their return home. Indeed, one wonders whether the new era of cooperation inaugurated in 2006 was only an instance of a domino effect, when a few institutions got caught with their hands in the cookie jar, the public relations value of quick settlements became the motivating factor, and several museums felt it best to jump on the band wagon. And to illustrate, settlements have been fewer and less dramatic since that watershed year.

V. Concluding Remarks

I do believe that the world of ADR in cultural property disputes is about to change. That is because so many organizations, governments, museums, auction houses and others are working hard to make that happen. ICOM, WIPO and UNESCO, among others, are training mediators in the particular problems posed by cultural property disputes, and I bet those efforts will pay off⁵⁸. I believe that, with a concerted world-wide effort, things

Possession of the British Library (15 September 2010), available at:

http://www.culture.gov.uk/images/publications/Benevento_5119_HC448_7-9.pdf (28.02.2012).

57 See, e.g., MIKE BOEHM, Getty Museum Agrees to Return Painting Looted by Nazis, The Los Angeles Times, 29 March 2011, available at: http://www.herrick.com/sitecontent.cfm?pageID=57&keyword

=molijn (28.02.2012).

58 See ICOM-WIPO Art and Cultural Heritage Mediation, http://icom.museum/what-we-do/programmes/art-and-cultural-heritage-mediation/icom-wipo-art-and-cultural-heritage-mediation.

html (28.02.2012); WIPO Arbitration and Mediation Center, http://www.wipo.int/amc/en/

(28.02.2012); Art and Cultural Heritage Mediation,

http://icom.museum/what-we-sent to Jerusalem’s Bezalel National Museum, which later became the Israel Museum⁴⁹. While preparing for an exhibit on looted art at the Berlin Centrum Judaicum, art histori-ans began researching the painting and discovered that it had been on loan from the artist himself. Therefore, the work now belongs to the artist’s heirs. After the three month exhibit at the Centrum Judaicum, the painting will remain in Berlin with the heirs⁵⁰. The Museum had also returned a looted Goudstikker drawing by Edgar Degas a few years earlier⁵¹.

In November 2010, a United Kingdom national museum returned the Benevento Missal – an Italian liturgical book containing instructions necessary for Mass – to its pre-War owner, marking the first Nazi-looted item to be restituted from a United Kingdom na-tional museum⁵². The Province of Benevento had filed a legal claim in 1978 seeking the return of the missal, but it was rejected because of the United Kingdom statute of limita-tions. In February 2000, United Kingdom museums published lists of works that had uncertain provenances from the Nazi-era, and the missal was included on that list⁵³. Later that year, a London lawyer started putting together a claim and, in 2002, submitted it to the Spoliation Advisory Panel, which provides an alternative to litigation by issuing nonbinding recommendations⁵⁴. If a party decides to accept a recommendation, however, and the recommendation is “implemented”, that party is “expected to accept [the rec-ommendation] as full and final settlement of the claim”⁵⁵. In 2005, although the Adviso-ry Panel recommended that the missal be returned, legal restrictions on deaccessioning prevented the British library from doing so. But, in 2009, a law on the Holocaust was passed in the U.K. making deaccessioning possible, and the Panel again recommended that the missal be returned. This time, the Museum was able to restitute the missal⁵⁶.

49 Associated Press, Israel Museum Returns Art to Artist’s Heirs, Ynetnews.com, 9 September 2011, available at: http://www.ynetnews.com/articles/0,7340,L-4119931,00.html (28.02.2012).

50 Ibid.

51 Press Release, Herrick, Feinstein LLP, Breakthroughs on Major Holocaust Claim (14 March 2005), available at: http://www.herrick.com/siteFiles/News/06B0FACB551C88A15EBCA53E1ED18477.

pdf (28.02.2012).

53 Ibid.

54 Department for Culture, Media and Sport, Spoliation Advisory Panel, http://www.culture.

gov.uk/what_we_do/cultural_property/3296.aspx (28.02.2012).

55 Ibid.

56 BAILEY (cit. n. 52); see also Report of the Spoliation Advisory Panel in Respect of a Renewed Claim by the Metropolitan Chapter of the Benevento for the Return of the Beneventan Missal Now in the

V. Concluding Remarks

Possession of the British Library (15 September 2010), available at:

http://www.culture.gov.uk/images/publications/Benevento_5119_HC448_7-9.pdf (28.02.2012).

57 See, e.g., MIKE BOEHM, Getty Museum Agrees to Return Painting Looted by Nazis, The Los Angeles Times, 29 March 2011, available at: http://www.herrick.com/sitecontent.cfm?pageID=57&keyword

=molijn (28.02.2012).

58 See ICOM-WIPO Art and Cultural Heritage Mediation, http://icom.museum/what-we-do/programmes/art-and-cultural-heritage-mediation/icom-wipo-art-and-cultural-heritage-mediation.

html (28.02.2012); WIPO Arbitration and Mediation Center, http://www.wipo.int/amc/en/

(28.02.2012); Art and Cultural Heritage Mediation,

http://icom.museum/what-we-will change. I favor mediation as a means of avoiding the pitfalls of litigation, such as the statute of limitations. As envisioned by the ICOM-WIPO Arbitration and Mediation Center, not only does alternative dispute resolution, and particularly mediation, allow for overcoming the statute of limitations, it has the potential to provide for “speedy resolu-tion[s] of dispute[s] at minimal cost”, while “preserving or enhancing the relationship between the parties”⁵⁹. Indeed, mediation is becoming increasingly popular as a method for dispute resolution and has been endorsed not only by ICOM and WIPO, but also by UNESCO’s Intergovernmental Committee, among other groups⁶⁰. And courts in the United States continue to promote mediation as an alternative to protracted litigation.

Take the following case as an example. On 3 November 2011, a Los Angeles court de-nied a motion to dismiss on, among other things, statute of limitations grounds, in a case brought by the Western Prelacy of the Armenian Apostolic Church of America against the J. Paul Getty Trust and Museum to recover pages from a 13^th century illuminated manuscript acquired by the Getty, ordering instead that the parties spend four months in mediation to try to resolve the dispute⁶¹.

So, alternate remedies are burgeoning, and many cases are being resolved. But the reme-dy does not (and cannot) work unless all parties want it to and agree to resolve the dis-pute in a mutually acceptable way. Unfortunately, I have seen nonbinding mediation used too often by one party as a way to “strong arm” the other side into backing down – i.e. by showing the other side that it has a very strong case – with really no interest in settling fairly. And sometimes, especially in the United States, mediation has been used simply to acquire free information. This ends up wasting everyone’s time, can be costly, and can actually delay a resolution. Indeed, international binding arbitration has become so costly

do/programmes/art-and-cultural-heritage-mediation.html (28.02.2012); Statutes of the Intergovern-mental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Res-titution in case of Illicit Appropriation, UNESCO Res. CLT/CH/INS-2005/21 (October 2005), adopt-ed by 20 C/Resolution 4/7.6/5 (28 November 1978), available at: http://unesdoc.unesco.org/images/

0014/001459/145960e.pdf (28.02.2012); Working Document for Discussion on a Strategy to Facili-tate the Restitution of Stolen or Unlawfully Exported Cultural Property, UNESCO Res. CLT-2005/CONF.202/4 (7–10 February 2005), available at: http://unesdoc.unesco.org/images/

0013/001382/138287e.pdf (28.02.2012).

59 ICOM-WIPO Art and Cultural Heritage Mediation, http://icom.museum/what-we-do/programmes/

art-and-cultural-heritage-mediation/icom-wipo-art-and-cultural-heritage-mediation.html (28.02.2012).

60 See supra, n. 58.

61 Western Prelacy v J. Paul Getty Museum, No. BC438824 (Super. Ct. Cal Nov. 3, 2011).

and complex that it can actually be worse than the onerous litigation it was conceived to displace⁶².

I would like to conclude by offering a few suggestions on what to worry about in trying to devise workable regimes for alternate dispute resolution in this field. First, especially in the context of Nazi-era and cultural property claims, it is important for the parties to try to understand their opponents’ position and show some sympathy, even while stress-ing the reasonableness of their own position. It is also important for the parties to be flexible. Because mediation gives the parties an opportunity for a more creative solution, clients must be prepared to think “outside the box” when it comes to what they are will-ing to settle for. For example, Holocaust claimants generally believe that their families have been wronged and their claims must be vindicated. At the same time, the possessor typically believes that it has done nothing wrong, that it acted reasonably and in good faith, and that therefore, it should not be deprived of what it considers “good title.” If there is to be any chance of successfully mediating, both sides have to moderate these opening positions.

Indeed, in any mediation, both sides have to give up something in order to find the mid-dle ground. Both the client and the lawyer need to go into the mediation knowing that a successful mediation means not getting everything they want. But, as I mentioned before, this is not an easy task. If the dispute involves a collection of art, it may be easier to find a middle ground solution. But if the parties are dealing with a single piece, they should consider as many options as possible, such as: (i) sharing use and possession of the piece; (ii) selling jointly and dividing the proceeds; or (iii) jointly presenting the piece at a cultural institution together with a financial arrangement. Parties may also want to consider long term loans (which were used in the mediation between the St. Gallen and Zurich cantons)⁶³ or an arrangement in which the disputed work is returned, but counter-vailing loans of different works are agreed to. In sum, parties should be flexible and consider every possibility.

Since many mediations take place after failed settlement negotiations, the parties should focus on why negotiations failed and try to bring that sensitivity into the mediation

62 See, e.g., JOSÉ MARÍA ABASCAL ZAMORA, Reducing Time and Costs on International Arbitration, Modern Law for Global Commerce, Congress to celebrate the fortieth annual session of UNCITRAL (2007), available at: http://www.uncitral.org/pdf/english/congress/Abascal-rev.pdf (stating that it is

“undeniable” that international arbitration has become “more expensive and time consuming” than litigation) (28.02.2012); for a U.S. perspective, see, e.g., ASHBY JONES, Has Arbitration Become More Burdensome than Litigation?, Wall Street Journal, 1 September 2010, available at:

http://blogs.wsj.com/law/2010/09/01/has-arbitration-become-worse-than-litigation/ (28.02.2012).

63 See CORNU/RENOLD, New Developments (cit. n. 13), pp. 1, 12; BANDLE/THEURICH, Alternative Dispute Resolution and Art-Law (cit. n. 14), pp. 28, 35.

will change. I favor mediation as a means of avoiding the pitfalls of litigation, such as the statute of limitations. As envisioned by the ICOM-WIPO Arbitration and Mediation Center, not only does alternative dispute resolution, and particularly mediation, allow for overcoming the statute of limitations, it has the potential to provide for “speedy resolu-tion[s] of dispute[s] at minimal cost”, while “preserving or enhancing the relationship between the parties”⁵⁹. Indeed, mediation is becoming increasingly popular as a method for dispute resolution and has been endorsed not only by ICOM and WIPO, but also by UNESCO’s Intergovernmental Committee, among other groups⁶⁰. And courts in the United States continue to promote mediation as an alternative to protracted litigation.