A growing number of restitution claims continue to be brought as artworks and objects emerge from private collections (where they have been held often for generations) and claimants discover new information, allowing them to bring new claims or revisit historical claims hampered due to lack of evidence. Nazi-era restitution claims can be complex and emotionally charged, involving multiple parties with competing interests. This is equally true of post-colonial repatriation claims. Trustees and executors may find themselves navigating a legal and ethical minefield to ensure estates and trusts are appropriately administered, works of art are rightfully inherited and entitlements are claimed or defended where necessary. There is also a reputational angle for both families and professional fiduciaries.
The legal framework surrounding restitution and repatriation claims varies from country to country and “soft law” in the form of international agreements and codes of ethics also feature in restitution cases. Depending on applicable law and jurisdiction, claims may be time-barred unless pursued within a specific timeframe. There is an added layer of complexity as parties turn to frameworks like, in the context of Nazi-looted art, the Washington Principles, and negotiated settlements in cases where there is a moral imperative and market pressure to resolve a claim.
The market demands that any provenance gap is resolved before the work is donated, sold or otherwise disposed of, because the value of an artwork with any Nazi taint will be severely damaged. Often restitution claims are resolved at the point of a public sale as auction houses and many dealers are aware that it is the only way to command a market price. Even if an artwork is purchased in good faith and/or held in a collection for many years, title and possession may not be secure if there are unknown or unsettled claims. Due diligence is best undertaken long before a transaction is entered into, rather than just before sale.
Research into the provenance of an object and its ownership history is a key element of effective due diligence. In particular, consigning an artwork for sale without knowing where the title risks lie and whether potential claimants may come forward is risky, given that the auction house or dealer in possession of the object may find themselves unable to deal with the artwork without facing a claim. The owner can then be exposed to potential claims on more than one front. This also applies to cultural property that may be subject to a repatriation claim from a source country because it has been misappropriated or exported in violation of local law.
In order to prevent or mitigate risk, trustees and executors are advised to fully investigate an artwork or object’s origin, ownership and history and, where necessary, confer with professionals, such as art historians and appraisers, to determine the provenance of any material. Where potential issues are uncovered, there is then a question of how and on what terms to seek to resolve the issues, whether to prevent legal claims or to address reputational concerns. Trustees and executors may consider whether voluntary restitutions are appropriate or settlements can be reached to pre-empt exposure to claims. Even if there is unassailable legal title, in a realm where legal and moral lines blur, it is crucial to recognise that restitution claims can often lead to protracted disputes that demand resolution from a commercial perspective, requiring careful consideration of financial implications and strategic decision-making to achieve a satisfactory outcome.