Alternative Dispute Resolution on Restitution Claims of Wrongfully Taken Cultural Objects

1. Introduction Alternative dispute resolution (ADR) which consists of, inter alia arbitration, mediation, conciliation, etc. tends to be used more widely than that of litigation in respect of cultural objects restitution disputes. For dealing with cultural property which were wrongfully taken such as looted and stolen, and avoiding the burdens of litigation, conventions and special institutes have been being established by international organizations such as UNESCO, International Law Association, World Intellectual Property Organization, etc. As to national panels, in UK, Spoliation Advisory Panel established in May 2000 to “consider claims against UK public museums by persons (or the descendants of persons) who lost possession of cultural objects during the period 1933to 1945. Comparable panels now exist in France, Austria, the Netherlands and Germany.”[1] Human Remains Advisory Panel and Private Mediation contribute part of the framework.[2] All those institutes aim to provide a better resolution to meet the need claims restitution claims involving cultural objects that were wrongfully taken whose number is increasing. Meanwhile, the limit of litigation for remedy has been highlighted. ADR has many advantages compared with litigation. However, shortcomings can not be ignored so that the current ADR dealing with restitution claims involving cultural objects wrongfully taken is to be improved and more effective, thereby a best option for dispute parties.

2. Advantages 2.1 Flexibility Under ADR, there is no limit of parties, dispute of jurisdiction, or bound by legal issues. A major benefit is “to eliminate the significant practical and legal problems that may arise when a claim is made by a person or group in one country against a museum or other institution in another country.”[3] It is common that dispute parties belong to two different countries and that one of the parties may be a state or a state-owned museum. National courts have or not the jurisdiction to put a state on the respondent bench is questionable. US Supreme Court decided , in the case Altmann v. Austria[4], it has. But it is debatable whether it was a violation of state’s sovereignty under international law. On the contrary, in ADR claims and respondents may widely include states, individuals, industries and indigenous communities without argument as long as they opt to use ADR. Legal issue is not a problem at all in ADR for the final decision is made sometime in accordance with not legality but morality. Morality and soft law play important role in dealing with cultural objects. In some cases, even though claims have no legal evidence or reason but a strong moral reason, they may be able to get back the object or gain compensation as a more usual solution. Morality is stressed in statutes and cases. In the mediation of BerthaL Gutmann against British Museum and the Fizwilliam Museum, the panel noticed the claimant “has a strong moral claim”[5], which effect final decision largely. In its constitution and reference, it is stipulated that “the Panel shall give due weigh to the moral strength of the claimant’s case;…consider whether any moral obligation rests on the institution,…”.[6] Such kind of provision can be also found in other statutes. Time limitation, valid transfer of ownership and other legal issues will not be obstacles for claimants and judicators. Outcome of ADR usually tends to be a win-win one.

2.2 Ease of enforcement All ADR are applied only if the two parties agree to choose. During the whole process in arbitration, mediation and conciliation, consultation of parties in a friend way reflects. The main purpose of the two parties is to settle the dispute rather than punish one part as an enemy or they will not agree to choose ADR. In jurisdiction, decision is solely for or against one party, which means there is always one party that lose the case. When states or states owned institutes are not willing to comply with courts’ decisions as they are request to return objects or pay a large amount of compensation, it is hard to enforce the decision. Furthermore, states will quote sovereign immunity, which makes the enforcement even more complicated. Individuals barely have a power to contend with the much stronger state power. In such situation, fair and impartial decisions will be of no effect, which makes decisions meaningless. The Altmann case didn’t go to enforcement step after Supreme Court of US made decision but to arbitration. “…the parties agreed to binding arbitration in Austria. A three-person arbitration panel ruled unanimously in February 2006 in favor of Altmann and five of the six Klimt paintings were returned to her, …”[7] The case settled at last by arbitration and accordingly the claimant received remedy, which is not easy to reach if the claimant relay on litigation.

2.3 Confidentiality and efficiency As ADR used in other field like trade disputes, confidentiality is another obvious advantage. “Claimants of looted property may not wish to have their sad and harrowing family histories ventilated publicly nor that some museums or other cultural institutions would necessarily wish to have the provenance of some exhibits openly dissected.”[8] Furthermore, people tend to be unwilling to be known by others that they possess valuable arts. News always shows anonymous buyer purchase arts with great value at auction by large amounts of money. Arbitration, mediation and conciliation are not open to public as in courts. Few final decisions if any are published while all courts decisions must be lay in front of public. One can find quite a few of arbitration and mediation cases. Even if cases are given to public, details are always kept under cover. The UK Spoliation Advisory Panel publishes a limited number of cases on its website. Commonly one report is published per year which is really short compared with case reports and reviews of courts. Details seldom expose to public, as in its reports words are seen “the claimant has given clear evidence”[9]. But as to what kind of specific evidence, readers are not able to access. That way of “being public” is no doubt a strong protection of privacy for both parties. ADR will make disputes settled efficiently. One needs patience to wait for final decisions from courts. Judges always need more time to give their long reasoning and decisions. If the case goes to appeal, it may take several years until final decision come. ADR will be much faster since parties may not wait for long time to open the case because too busy the court is dealing with all kinds of trials. Procedurals are far less complicated and no appeals should be filed in ADR. Cost of ADR may not less than litigation, for the same money will be paid to lawyers; it is hard to give a definite answer as well which, courts or ADR institutes, charge more fees. However, saving time and ending up with a solution in time is a kind of saving money.

3. Problems 3.1 No bound for parties except arbitration There is no legal bound for the two parties to enforce in ADR. International arbitration awards would be enforced in domestic courts of the state if the state is a Contracting State of New York Convention. But in Article V it lists several situations when “recognition and enforcement of the award may be refused”.[10] It is noticed that public policy falls in this list. When a state owned museum or gallery has to return their collections, public policy could easily be an excuse as no clear definition of public policy and it is decided by domestic courts. Another concern is Contracting States can make reservation when sign and ratify New York Convention. States may argue they only recognize and enforce arbitration awards dealing with certain kinds of dispute. Wrongfully taken cultural objects disputes may not belong to the catalogue that falls out of the reservation. Mediation “does not benefit from any international enforcement convention”.[11] Though for most of time outcome is made due to agreement of two parties, one can not guarantee no party will regret. Once this happens, one party does not enable to go to court for enforcing the award. Conciliation and negotiation meet the same challenge. Accordingly, one would ask when parties are not willing to perform as award requires to, what the role is for the award. Is it a contract? Or is it simply meaningless? Another issue is when dealing with cultural objects and involving state owned institute, domestic policy and laws sometimes obstruct the performance even if both of the parties desire to do so. In the case Benevento v. British Library, Spoliation Advisory Panel concluded that the Missal should be returned to the claimants.”[12] “However, at this juncture, such transfer was precluded by Section 3 (5) of the British Library Act 1972”.[13] Claimant and respondent can not meet the criteria to transfer the object under the domestic Act even though both of them have been trying since panel made the conclusion. So this case was filed again in 2010. Missal will be returned and transferred “If the Secretary of State approves this recommendation”[14].

3.2 The quality of third party Usually, arbitrator or mediator is chosen by the two parties, but different method is used at the same time. As to the UK Spoliation Advisory Panel which is established by the Minister for Art, the members “will be appointed by the Secretary of State on such terms and conditions as he thinks fits”.[15] Which method is better is not a topic to discuss here. Other than that, what quality is needed considering for the two parties and for the Secretary of State (if it is assumed the Secretary of State can be trust). Lawyers and judges always play that role, but “There is, unfortunately, no obvious match between the characteristics that make for excellent judging and the skills required for successful mediation.”[16] Arbitration faces the same problem. The situation is even worse when come to cultural objects because it seems disputes settlers should have knowledge of art. Independent experts are chosen as mediators as in article 2 of the Draft Rules of Procedure for Mediation and Conciliation in accordance with Article 4, Paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Counties of Origin or Its Restitution in case of Illicit Appropriation.[17] (hereinafter Draft Rules) Though Ian Baker disagreed with this point of view, who argued “the Chair should be a lawyer or retired Judge because legal issues would be pivotal in most disputes and procedural and case management skills, important” and he agreed experts can be members of or appointed by the tribunal. On one hand, if the tribunal is lack of legal profession especially procedural issue, decisions may be unrealistic as the Benevento case let alone the should-be-fair-impartial decision. On the other hand, in case tribunal members have no art related knowledge, a fair compensation is hard to decide especially in the circumstances where one of the parties is weak or lack of legal aid considering it is common in restitution claims of cultural objects individuals are against a state or state owned institutes. Thus, experts on not only legal aspect but also art and cultural objects study are required in the tribunal. This kind of tribunal is not as easy as simple trade tribunal to constitute.

3.3 Ambiguity of rules and beyond No specific rules are given to arbitrator, mediator or conciliator. Rules are always these of dealing with procedures. Even procedural rules are not explicit. Art 3 of Draft Rules declares “the mediation and conciliation procedures shall… in accordance with the general principles of fairness, impartiality and good faith”[18]. It is difficult to identify the meaning of fairness, impartiality and good faith. More difficult task will arise where one intends to describe if the procedures and the conduct of mediator and conciliator are in accordance with these principles. Again, these principles are more about morality rather than legality, which would be a benefit sometime but a problem otherwise. Question is asked “whether full set of procedural rules are necessary”[19]. If it is not, by what means in this circumstance can individuals’ rights be protected when arguing with a super power and can fairness be guaranteed even though claimant and respondent are two private equal parties. Precedents can not be applied in ADR( if any published), which demonstrate the flexibility of ADR because case are not bound and awards could be made according to each unique situation. Nevertheless, confusion may arise where statutes are ambiguous and no precedents are followed. Most Conventions and ADR institutes dealing with restitution claims involving cultural objects that were wrongfully taken are target at Holocaust-related claim. Washington Principles, Resolution of the Parliamentary Assembly of the Council of Europe, French Holocaust Restitution Committee and Spoliation Advisory Panels are all for the purpose of settling Holocaust-related claim.[20] Limit of one period will limit the benefits of ADR. Such kind of mechanism is needed for other disputes also caused by wrongful taken cultural objects like those of looting in Iraq or stolen. International organizations contribute not enough though a lot in this field. It is good to know Brooks alleged “the PCA(Permanent Court of Arbitration) may be well-positioned to act as a platform for the development of such a mechanism.”[21]

4. Conclusion ADR draws wide attention for settling disputes arising from wrongful taken cultural objects. Compared with litigation, advantages of arbitration, mediation and conciliation are the flexibility of both claimed and jurisdiction; the easy enforcement due to the resolution agreed by both parties most of time; the confidentiality of the process and decision as well as the fast and economical procedure. Meanwhile, problems exist. There is no legally bound for parties nor clear rules, in which circumstances the quality of third party and morality play an important role in decision making, and it is evident that fairness, impartial and good faith are not easy to define. ADR is a better option for most time. Advantages of ADR are obvious. Alongside dealing with increasing number of cases limitations and problems of ADR R arise, which reduces the ADR’s charm. By aware of these shortcomings, a large quality of work could be done. One needs to consider the enforceability before opting ADR. Accurate procedure rules as well as qualified third party are imperative. For produce the best possible results, ADR should embrace a wide kind of disputes not only of Holocaust-related, but also all types of disputes involving cultural property and art.

Bibliography

B, Lan, ‘Thoughts of an Alternative Dispute Resolution Practitioner on an International ADR Regime for Repatriation of Cultural Property and Works of Art’ in Barbara T. Hoffman (ed.) Art and Cultural Heritage: law, policy, and practice (Cambridge 2005) Convention on the Recognition and Enforcement of Foreign Arbitral Awards. D, Brooks, ‘The Potential for Arbitration of Cultural Property Disputes: Recent Developments at the Permanent Court of Arbitration’ (2005) 4 Law & Prac. Int’l Cts. & Tribunals 261 Draft Rules of Procedure for Mediation and Conciliation in accordance with Article 4, Paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Counties of Origin or Its Restitution in case of Illicit Appropriation E, Harry, ‘Alternative Dispute Resolution: Panacea or Anathema?’ (1985-1986)99 Harv. L. Rev. 668 International Foundation for Art Research, case summary, Altmann v. Austria N, James, ‘The Principles for Cooperation in the Mutual Protection and Transfer of Cultural Materia’ (2007-2008)8 Chi. J.Int'l L 147 N, Palmer, “Litigation: The Best Remedy?” in Prott, Lindel V. (ed), Witnesses to history: a compendium of documents and writing on the return of cultural objects(UNESCO, Paris 2009) Report of the Spoliation Advisory Panel in Respect of a 12th Century Manuscript now in the Possession of the British Library, published on 23 March 2005. Report of the Spoliation Advisory Panel in Respect of Renewed Claim by The Metropolitan Chapter of Benevento for the Return of the Beneventan Missal Now in the Possession of the British Library Report of the Spoliation Advisory Panel in Respect of Pieces of Porcelain now in the Possession of the British Museum, London and the Fitzwilliam Museum, Cambridge 2008 Republic of Austria v. Altmann, 541 U.S. 677 (2004)

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[1] Palmer Norman, “Litigation: The Best Remedy?” in Prott, Lindel V. (ed), Witnesses to history: a compendium of documents and writing on the return of cultural objects(UNESCO, Paris 2009) 364
[2] ibid
[3] James A.R. Nafziger, ‘The Principles for Cooperation in the Mutual Protection and Transfer of Cultural Materia’ (2007-2008)8 Chi. J.Int'l L 147,158
[4] Republic of Austria v. Altmann, 541 U.S. 677 (2004)
[5] Report of the Spoliation Advisory Panel in Respect of Pieces of Porcelain now in the Possession of the British Museum, London and the Fitzwilliam Museum, Cambridge 2008
[6] ibid
[7] International Foundation for Art Research, case summary, Altmann v. Austria accessed on 24 November 2010
[8] Lan Barker, ‘Thoughts of an Alternative Dispute Resolution Practitioner on an International ADR Regime for Repatriation of Cultural Property and Works of Art’ in Barbara T. Hoffman (ed.) Art and Cultural Heritage: law, policy, and practice (Cambridge 2005) 483-84
[9] Report of the Spoliation Advisory Panel in Respect of Pieces of Porcelain now in the Possession of the British Museum, London and the Fitzwilliam Museum (n 5)
[10] Article V, Convention on the Recognition and Enforcement of Foreign Arbitral Awards. accessed on 25 November 2010
[11] Norman (n 1) 360
[12] Report of the Spoliation Advisory Panel in Respect of a 12th Century Manuscript now in the Possession of the British Library, published on 23 March 2005.
[13] Report of the Spoliation Advisory Panel in Respect of Renewed Claim by The Metropolitan Chapter of Benevento for the Return of the Beneventan Missal Now in the Possession of the British Library. para.3
[14] ibid para.8.
[15] Report of the Spoliation Advisory Panel in Respect of Pieces of Porcelain now in the Possession of the British Museum, London and the Fitzwilliam Museum (n 8) art. 1
[16] Harry T. Edwards, ‘Alternative Dispute Resolution: Panacea or Anathema?’ (1985-1986)99 Harv. L. Rev. 668, 670
[17] Draft Rules of Procedure for Mediation and Conciliation in accordance with Article 4, Paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Counties of Origin or Its Restitution in case of Illicit Appropriation accessed on 24 November 2010
[18] ibid
[19] Brooks W Daly, ‘The Potential for Arbitration of Cultural Property Disputes: Recent Developments at the Permanent Court of Arbitration’ (2005) 4 Law & Prac. Int’l Cts. & Tribunals 261, 277
[20] Norman (n 1) 363
[21] Daly (n 19) 280