Attempts have certainly been made to resolve art and cultural property cases such as these out of court through ADR, either before or after they were commenced. For exam-ple, for several years before we filed Marei von Saher’s case against the Norton Simon Museum, we spent countless hours trying to negotiate a settlement. Indeed, we suffered through two failed mediations, one in California and another in New York, both before a respected former judge and experienced mediator who had a terrific track record in re-solving disputes by mediation. Likewise, in the Bondi case, at both sides’ request, the Court (then Chief Judge Michael Mukasey) appointed a Federal Magistrate to mediate a resolution of the dispute. But, after several meetings, the parties remained too far apart and the mediation efforts failed. The settlement in that case occurred several years later, after much litigation, and on the eve of trial12. In the other cases I mentioned – as in so many others I have been involved in or observed – notwithstanding almost continuous
9 Press Release, Herrick, Feinstein LLP and Baker McKenzie, Goudstikker, At Long Last, Justice (6 February 2006), available at: http://www.herrick.com/siteFiles/News/2EFAC18113551A56 D4D63417B1FF0E1E.pdf (28.02.2012).
10 United States v Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. 2009).
11 Press Release, Herrick, Feinstein LLP, The United States of America, the Estate of Lea Bondi Jaray and the Leopold Museum Settle the Long-Standing Case Involving “Portrait of Wally” by Egon Schiele (26 July 2010), available at: http://www.herrick.com/siteFiles/News/C31D953CE7FF53601 B90397873AB242B.pdf (28.02.2012).
12 Ibid.
settlement negotiations, often with informal mediation efforts initiated by independent Government officials or altruistic third parties, it took years of litigation and hard fought and expensive interim court victories, before one side or the other “caved” and settle-ments were finally achieved. Or, as in the case of the Norton Simon litigation, they go on and on in the courts.
While I believe cultural property cases should be resolved without having to go to court, in the cultural property field this has been harder to achieve than in other areas. I have spent many hours trying to figure out why one case can be successfully negotiated and another cannot. In my experience, unfortunately, it is usually only because one side or the other perceives their case as weak or because it has concluded that the public rela-tions value of a negotiated or mediated settlement outweighs the cost, aggravation and bad karma of litigation. But what about the case where the parties each see themselves as the one with the superior position or where they have decided that they do not care about adverse publicity and must keep the cultural property at issue at all costs? Then what are the chances that ADR will work?
Mediations are often confidential. It is therefore difficult to gauge how many successful resolutions there have been in recent years. But some are publicized, such as the media-tion between the Swiss cantons St. Gallen and Zurich regarding a number of cultural objects that were looted during religious wars in that region during the eighteenth centu-ry13. Using mediation, the two cantons reached an agreement in 2006, which established that Zurich owned the objects at issue, but recognized the importance of the objects to St.
Gallen14. The settlement granted St. Gallen a long term loan of many objects in the col-lection, including ancient manuscripts and a replica of a Prince-Abbot Bernhard Muller celestial globe, which was specially constructed for the St. Gallen canton at Zurich’s expense15.
In contrast to mediation, arbitration is binding and typically involves more formal pro-ceedings, where each side has the opportunity to present its evidence, and witnesses may be examined and cross-examined16. But international arbitration can be expensive and time consuming as well. Moreover, arbitration has rarely been used in the context of art
13 CORNU MARIE/RENOLD MARC-ANDRÉ, New Developments in the Restitution of Cultural Property:
Alternative Means of Dispute Resolution, International Journal of Cultural Property, Vol. 17, Issue 1, 2010, pp. 1, 12.
14 BANDLE ANNE LAURE/THEURICH SARAH, Alternative Dispute Resolution and Art-Law: A New Research Project of the Geneva Art-Law Centre, Journal of International Commercial Law and Technology, Vol. 6, Issue 1, 2011, pp. 28, 35.
15 Ibid.; CORNU/RENOLD, New Developments (cit. n. 13), pp. 1, 12.
16 See generally DREW PETERSON, Getting Together: Arbitration – How to Save Time and Money and Wish You Hadn’t, 25 Alaska Bar Association 23, June 2001.
name just a few9. And our clients’ efforts to recover “Portrait of Wally,” an important Schiele work stolen from Lea Bondi Jaray during World War II10, took more than twelve years of litigation before it was finally settled, with the defendant, Vienna’s Leopold Museum, paying the Bondi Heirs $19 million, the then market value of the work11. At a conference in London in 1993, I ended a lecture on the Lydian Hoard case with what I then called “an admission against interest” – expressing the hope that through coopera-tive global efforts the day will come when claimants will be able to reclaim their stolen cultural property without the need to resort to protracted and expensive litigation. Well, I am still in business. And although in 1993, my colleagues and I stood somewhat alone in the field, there are now many lawyers in the United States and Europe who have joined the fray, with plenty of work to keep them busy. I said then and I reiterate now: there must be a better way.
III. A Realistic Look at the Resolution of Art and Cultural Property Cases through ADR
Attempts have certainly been made to resolve art and cultural property cases such as these out of court through ADR, either before or after they were commenced. For exam-ple, for several years before we filed Marei von Saher’s case against the Norton Simon Museum, we spent countless hours trying to negotiate a settlement. Indeed, we suffered through two failed mediations, one in California and another in New York, both before a respected former judge and experienced mediator who had a terrific track record in re-solving disputes by mediation. Likewise, in the Bondi case, at both sides’ request, the Court (then Chief Judge Michael Mukasey) appointed a Federal Magistrate to mediate a resolution of the dispute. But, after several meetings, the parties remained too far apart and the mediation efforts failed. The settlement in that case occurred several years later, after much litigation, and on the eve of trial12. In the other cases I mentioned – as in so many others I have been involved in or observed – notwithstanding almost continuous
9 Press Release, Herrick, Feinstein LLP and Baker McKenzie, Goudstikker, At Long Last, Justice (6 February 2006), available at: http://www.herrick.com/siteFiles/News/2EFAC18113551A56 D4D63417B1FF0E1E.pdf (28.02.2012).
10 United States v Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. 2009).
11 Press Release, Herrick, Feinstein LLP, The United States of America, the Estate of Lea Bondi Jaray and the Leopold Museum Settle the Long-Standing Case Involving “Portrait of Wally” by Egon Schiele (26 July 2010), available at: http://www.herrick.com/siteFiles/News/C31D953CE7FF53601 B90397873AB242B.pdf (28.02.2012).
12 Ibid.
settlement negotiations, often with informal mediation efforts initiated by independent Government officials or altruistic third parties, it took years of litigation and hard fought and expensive interim court victories, before one side or the other “caved” and settle-ments were finally achieved. Or, as in the case of the Norton Simon litigation, they go on and on in the courts.
While I believe cultural property cases should be resolved without having to go to court, in the cultural property field this has been harder to achieve than in other areas. I have spent many hours trying to figure out why one case can be successfully negotiated and another cannot. In my experience, unfortunately, it is usually only because one side or the other perceives their case as weak or because it has concluded that the public rela-tions value of a negotiated or mediated settlement outweighs the cost, aggravation and bad karma of litigation. But what about the case where the parties each see themselves as the one with the superior position or where they have decided that they do not care about adverse publicity and must keep the cultural property at issue at all costs? Then what are the chances that ADR will work?
Mediations are often confidential. It is therefore difficult to gauge how many successful resolutions there have been in recent years. But some are publicized, such as the media-tion between the Swiss cantons St. Gallen and Zurich regarding a number of cultural objects that were looted during religious wars in that region during the eighteenth centu-ry13. Using mediation, the two cantons reached an agreement in 2006, which established that Zurich owned the objects at issue, but recognized the importance of the objects to St.
Gallen14. The settlement granted St. Gallen a long term loan of many objects in the col-lection, including ancient manuscripts and a replica of a Prince-Abbot Bernhard Muller celestial globe, which was specially constructed for the St. Gallen canton at Zurich’s expense15.
In contrast to mediation, arbitration is binding and typically involves more formal pro-ceedings, where each side has the opportunity to present its evidence, and witnesses may be examined and cross-examined16. But international arbitration can be expensive and time consuming as well. Moreover, arbitration has rarely been used in the context of art
13 CORNU MARIE/RENOLD MARC-ANDRÉ, New Developments in the Restitution of Cultural Property:
Alternative Means of Dispute Resolution, International Journal of Cultural Property, Vol. 17, Issue 1, 2010, pp. 1, 12.
14 BANDLE ANNE LAURE/THEURICH SARAH, Alternative Dispute Resolution and Art-Law: A New Research Project of the Geneva Art-Law Centre, Journal of International Commercial Law and Technology, Vol. 6, Issue 1, 2011, pp. 28, 35.
15 Ibid.; CORNU/RENOLD, New Developments (cit. n. 13), pp. 1, 12.
16 See generally DREW PETERSON, Getting Together: Arbitration – How to Save Time and Money and Wish You Hadn’t, 25 Alaska Bar Association 23, June 2001.
and cultural property disputes17. Indeed, even in the seminal case used to exemplify the use of arbitration in art disputes – Republic of Austria v Altmann – the matter was first the subject of a litigation that lasted more than ten years in the United States courts18. The case went all the way up to the Supreme Court before ending with an arbitration decision in Austria (even though, I might add, the Appellate Court in California that heard the case had ordered mediation, and that court-ordered mediation failed). Ultimate-ly, the arbitration tribunal ordered the Austrian Government to restitute to Ms. Altmann five extraordinary works by Gustav Klimt, which had been confiscated from her family by the Nazis during World War II and which ended up in the Austrian National Gallery19. It is clear that, under certain circumstances, alternative dispute resolution may provide an amicable and straightforward means of resolving a controversy. But, having been at the center of numerous complex disputes involving claims to art and other cultural property, I am also a great cynic when it comes to alternative dispute resolution. Indeed, from my own experience, I believe that there are, unfortunately, many reasons why the mediation and negotiation of art disputes are often doomed from the outset.
In particular, disputes involving claims to Holocaust-era art or looted antiquities are often more difficult to resolve by alternative means than other types of cultural property disputes – including, for example, disputes relating to art loans, art acquisitions or dona-tions, art fairs, intellectual property, the use of art as collateral in financial transacdona-tions, the digitalization of art, and others20. With regard to Holocaust-era claims, this difficulty is due in part to the strong emotional component involved in such cases, as well as the typically polarized positions of the parties involved. Indeed, as a general matter, emo-tions will often play a role in art disputes, more so than in strictly commercial cases, and particularly in Holocaust-era claims. In contrast to commercial cases, where there is often common ground because the main issue is economic, in Nazi-looted art cases, emotions cause the parties to take starkly disparate views of the issues.
The same can be said for cases involving looted antiquities, as such objects often com-prise a sovereign nation’s cultural heritage. As described by Marie Cornu of the French National Centre for Scientific Research and Marc-André Renold, “cultural property forming part of a state’s heritage […] [are] the items of the highest importance whether they are in public or private hands. Looked at from this standpoint […] [these] items
17 CORNU/RENOLD, New Developments (cit. n. 13), p. 13.
18 Republic of Austria v Altmann, 541 U.S. 677 (2004).
19 CORNU/RENOLD, New Developments (cit. n. 13), p. 13.
20 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).
[are] considered to be inseparable from the country to which they belonged”21. And often the sovereign’s laws make it difficult or well-nigh impossible to negotiate away the retention of any looted property. Thus, in most cases, the foreign sovereign is open to one solution and one solution only – namely, the repatriation of its property. Consequently, many Nazi-looted art and cultural property cases end up in court, notwithstanding one or both parties’ efforts otherwise to resolve such claims. Moreover, as said, where these cases do ultimately end in a settlement, it is often a result of the court proceedings that sway one party or another to commit to negotiations, usually due to the fear of losing at trial.
A good example of this is Republic of Turkey v Metropolitan Museum of Art22, the Lydi-an Hoard case I mentioned above, in which Turkey retained me Lydi-and my colleagues to prosecute a claim against the Metropolitan Museum of Art for the return of almost 400 remarkable objects created by master craftsmen in the 6th century B.C. We first sought to resolve the matter peacefully, but the Museum flatly rejected our overtures. Indeed, we were curtly shown the door. A six-year court case ensued, largely spent defending an application by the Museum asking the court to get rid of the case without reaching the merits of Turkey’s claim on the ground of the statute of limitations. After three years of litigation on this single issue alone, the Museum’s application was denied23. Only then could we begin to obtain information from the Museum about its knowledge of the ob-jects’ provenance and its conduct in acquiring them – a process that in the United States we call discovery – and thereby proceed with the next phase of the litigation. Finally, in 1993, the Met agreed to resolve the case short of trial, and the Lydian Hoard objects were returned to Turkey24. Although the resolution was ultimately favorable, the Republic had to fight a long and costly legal battle before it was finally able to convince the Museum to act on the truth that lay behind its own records from the very beginning – i.e. that the Met knew that the objects had recently been unearthed from Turkey when it acquired them. Undoubtedly, many factors influenced the Museum’s decision to return the Lydian Hoard. But it is less likely that the Museum finally saw the light and did the right thing, and more probable that it did not want to hear the upcoming testimony of present and former Museum officials as to what the Museum knew and when it knew it.
21 CORNU/RENOLD, New Developments (cit. n. 13), p. 14.
22 Republic of Turkey v Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y. 1990).
23 Ibid.
24 Press Release, Herrick, Feinstein LLP, Turkey’s Lawsuit Against Metropolitan Museum of Art Ends with Return of Lydian Hoard Antiquities to Turkey (1993), available at: http://www.herrick.com/
siteFiles/News/94F46F571AA38025A4D3343547A8B65F.pdf (28.02.2012).
and cultural property disputes17. Indeed, even in the seminal case used to exemplify the use of arbitration in art disputes – Republic of Austria v Altmann – the matter was first the subject of a litigation that lasted more than ten years in the United States courts18. The case went all the way up to the Supreme Court before ending with an arbitration decision in Austria (even though, I might add, the Appellate Court in California that heard the case had ordered mediation, and that court-ordered mediation failed). Ultimate-ly, the arbitration tribunal ordered the Austrian Government to restitute to Ms. Altmann five extraordinary works by Gustav Klimt, which had been confiscated from her family by the Nazis during World War II and which ended up in the Austrian National Gallery19. It is clear that, under certain circumstances, alternative dispute resolution may provide an amicable and straightforward means of resolving a controversy. But, having been at the center of numerous complex disputes involving claims to art and other cultural property, I am also a great cynic when it comes to alternative dispute resolution. Indeed, from my own experience, I believe that there are, unfortunately, many reasons why the mediation and negotiation of art disputes are often doomed from the outset.
In particular, disputes involving claims to Holocaust-era art or looted antiquities are often more difficult to resolve by alternative means than other types of cultural property disputes – including, for example, disputes relating to art loans, art acquisitions or dona-tions, art fairs, intellectual property, the use of art as collateral in financial transacdona-tions, the digitalization of art, and others20. With regard to Holocaust-era claims, this difficulty is due in part to the strong emotional component involved in such cases, as well as the typically polarized positions of the parties involved. Indeed, as a general matter, emo-tions will often play a role in art disputes, more so than in strictly commercial cases, and particularly in Holocaust-era claims. In contrast to commercial cases, where there is often common ground because the main issue is economic, in Nazi-looted art cases, emotions cause the parties to take starkly disparate views of the issues.
The same can be said for cases involving looted antiquities, as such objects often com-prise a sovereign nation’s cultural heritage. As described by Marie Cornu of the French National Centre for Scientific Research and Marc-André Renold, “cultural property forming part of a state’s heritage […] [are] the items of the highest importance whether they are in public or private hands. Looked at from this standpoint […] [these] items
17 CORNU/RENOLD, New Developments (cit. n. 13), p. 13.
18 Republic of Austria v Altmann, 541 U.S. 677 (2004).
19 CORNU/RENOLD, New Developments (cit. n. 13), p. 13.
20 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).
[are] considered to be inseparable from the country to which they belonged”21. And often the sovereign’s laws make it difficult or well-nigh impossible to negotiate away the retention of any looted property. Thus, in most cases, the foreign sovereign is open to one solution and one solution only – namely, the repatriation of its property. Consequently,
[are] considered to be inseparable from the country to which they belonged”21. And often the sovereign’s laws make it difficult or well-nigh impossible to negotiate away the retention of any looted property. Thus, in most cases, the foreign sovereign is open to one solution and one solution only – namely, the repatriation of its property. Consequently,