Almost every important art exhibition also exhibits art objects on loan from domestic or foreign institutions or private owners. Recently, this lending policy has been severely threatened by third parties trying to attach art objects on loan from foreign countries and claiming to be the rightful owners of these objects, which were expropriated many years ago by the Nazis or stolen, converted, or confiscated abroad. Also, creditors of lending institutions may try to get hold of these objects and liquidate them. The Schiele affair,1
United States v. Portrait of Wally, 105 F.Supp.2d 288 (S.D.N.Y. 2000).
Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C. 2005).
Cp. “Wirbel um zunächst zurückgehaltene Bilder,” Neue Zürcher Zeitung November 17, 2005, and decision of the Swiss Federal Council of November 16, 2005.
After inspecting the relevant national, international, and supranational sources and nonbinding codes of ethics (pp. 36–123), the author's first, extensive chapter deals with loans from foreign countries without any binding return guarantee (pp. 124–232). She discusses problems of domestic and of private international law mainly from the perspective of German and European law. Several pages are devoted to the application of foreign export restrictions in domestic courts. This problem has already been extensively discussed with respect to illegally exported art objects intended to be located permanently outside the country of origin. The leading British case is Attorney General of New Zealand v. Ortiz.4
[1984] 1 A.C. 1, 35 (H:L.).
In other European countries, foreign export regulations with respect to cultural object have not been enforced: neither in Germany,5
Bundesgerichtshof June 22, 1972, 59 Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) p. 82 (Nigeria case), and in 73 International Law Reports, p. 226. This case did not enforce foreign export prohibitions and did not order the return of smuggled art objects.
Cass. November 24, 1995, no. 12199, Foro italiano 1996, I, 1, p. 907, and Rivista di diritto internazionale 80 (1997): 515 (Governo di Francia c. De Contessini).
Appellationsgericht Basel-Stadt, August 18, 1995, Basler Juristische Mitteilungen 1997: 17 et seq., at p. 21; and Schweizerische Zeitschrift für internationales und europäisches Recht 7 (1997): 492.
Cp. the Federal Act of June 20, 2003, on the International Transfer of Cultural Property, in force June 1, 2005. Cp. the English translation in International Journal of Cultural Property 12 (2005): 467–476, with comments by Marc Weber, “New Swiss Law on Cultural Property,” International Journal of Cultural Property 13 (2006): 99–113.
Bundesgericht April 8, 2005, 131 III Entscheidungen des Schweizerischen Bundesgerichts p. 418 (Union de l'Inde c. Crédit Agricole Indosuez (Suisse) SA). Kurt Siehr, “Das Kulturgütertransfergesetz der Schweiz aus der Sicht des Auslandes,” Aktuelle Juristische Praxis 2005, pp. 675 et seq., at p. 680–681.
“Das grosse Hasenstück. Madrid und Wien im Streit um Dürer,” Neue Zürcher Zeitung March 5, 2005, and press release of the Austrian Federal Ministry of Education, Science and Culture of March 11, 2005.
The problem of foreign export policies may be different with respect to permanent loans. The famous painting Christ's Entry into Brussels in 1889 (1888, exhibited since 1929) of James Ensor (1860–1949) may serve as an illustration. It was exhibited in the Koninklijk Museum voor Schone Kunsten of Antwerp, Belgium, from 1947 to 1983 before it was given by the private owner to the Kunsthaus Zürich as a permanent loan (1983–1987); it was finally sold in 1987 to the J. Paul Getty Museum in Malibu, California.11
Patricia G. Berman, James Ensor. Christ's Entry into Brussels in 1889, Los Angeles: J. Paul Getty Museum 2002, pp. 91–97.
Official Journal of the EEC 1993, No. L 74, p. 74, and International Journal of Cultural Property 6 (1997): 387.
Code of July 16, 2004, Moniteur belge of July 27, 2004, p. 57344; and Yearbook of Private International Law 6 (2004): 319 (English translation). Cp. also Kurt Siehr, “Chronicles.” International Journal of Cultural Property 12 (2005): 568 (translation of Article 90).
The main focus of the thesis is concerned with the export guarantees given by the country of the borrowing institution to the owner of the art object on loan. If state galleries are involved, execution immunity under public international law has been granted to the art objects and arrest or seizure has been prohibited or lifted.14
Cp. Tribunal civil de la Seine, July 12, 1954, Journal de droit international 82 (1955): 118 (Keller c, maison de la Pensée Française); Swiss Federal Council, supra n. 3;
The Neue Galerie of New York was asked to lend paintings of the “Serge Sabarsky Collection” to the Historical Museum of the City of Vienna and the exhibition “Serge Sabarsky, a collector in New York.” Because Austria could not guarantee the safe return of the paintings to New York, the exhibition could not take place. Frankfurter Allgemeine Zeitung May 19, 2003, p. 48; International Journal of Cultural Property 12 (2005): 128.
Cp. e.g., the U.S.-American Immunity from Seizure Act 1965, 22 U.S.C. § 2459; the New York Arts and Cultural Affairs Law § 12.03, McKinney's Consolidated Laws of New York Annotated, book 3B; the British Columbia Law and Equity Act 1979, R.S.B.C., c. 224, section 55 as amended by the act R.S.B.C. 1996,. c. 253. Similar immunity statutes are in force at least in the Canadian provinces of Alberta, Manitoba, Ontario, and Quebec.
Cp. the Austrian Bundesgesetz of December 30, 2003, über die vorübergehende sachliche Immunität von Leihgaben zu Ausstellungen in Bundesmuseen, Bundesgesetzblatt 2003 I, p. 1831; Belgian Code judiciaire Article 1412ter; the French Loi no. 94–679 of August 8, 1994, Article 61, Journal officiel of August 10, 1994, p. 11668; the German Gesetz zum Schutz deutschen Kulturgutes gegen Abwanderung of July 8, 1999, § 20, Bundesgesetzblatt 1999 I, p. 1755; Swiss Federal Statute on the International Transfer of Cultural Property Articles 10–13, supra n. 8.
Another conflict may arise with international conventions providing for the return of an art object to somebody other than the institution having given the loan. May the gallery receiving the loan and guaranteeing its safe return refuse to do so because a local provision based on an international agreement obliges the receiving state to return the object to a third party? Let us assume the Berlin National Gallery received Schiele's Portrait of Wally as a loan from the Leopold Gallery in Vienna, and Germany guaranteed the return of the painting to the Leopold Gallery. Would this guarantee also be valid if Germany and Vienna ratified and implemented the UNESCO Convention of 1970 and the painting was illegally exported from Switzerland? Because the UNESCO Convention is not self-executing and gives a wide discretion to the state parties, the convention does not prohibit any national return guarantee.18
Therefore, the Swiss implementing statute of 2003 (supra n. 8) could provide the Swiss return guarantee in Articles 10–13.
International Journal of Cultural Property 5 (1996): 155.
Within the European Union, a national return guarantee cannot supersede the recovery claims raised under national statutes implementing the Council Directive 93/7/EEC of March 15, 1993.20
Supra n. 12.