News | August 31, 2023


In the past six months, the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (the “Committee“) has been rather busy. In March it was widely reported that “Portrait of Omai” by Sir Joshua Reynolds (the “Painting“) was on the verge of leaving the UK after an agreement had been reached with a non-UK buyer, and now a similar issue has arisen regarding a chandelier commissioned by Peter Watson in the 1940s and sculpted by Alberto Giacometti (the “Chandelier“). Interestingly, on both occasions the Committee saw fit to defer the sale. This post will look to analyse why.

Firstly, it is important to understand the artworks in question. The Painting depicts a Polynesian man named Mai (dubbed “Omai” in Britain) arriving in the UK aboard HMS Adventure following Captain James Cook’s second voyage in 1774. The Painting, showing Omai in full white Tahitian dress, has been recognised for how it “illustrates the connectivity of the world in the late eighteenth century”. Similarly, the Chandelier, which is made of bronze and features multi-layered armature and an impressively sculpted sphere hanging at the base, has been described as “a prime example of sculptors blurring the boundaries between function and art”. Both are linked by their aesthetic importance and historical significance, which brings us on to the Waverley criteria.

If the Waverley criteria are satisfied, the granting of an export licence to an international buyer is deferred for a specified period in the hope a UK buyer will match their offer, providing an opportunity to domestic buyers to keep works of cultural importance within the UK. 

The Waverley criteria are:

1. Is it closely connected with our history and national life?

2. Is it of outstanding aesthetic importance?

3. Is it of outstanding significance for the study of some particular branch of art, learning or history?

Both the Painting and the Chandelier were considered to satisfy these three criteria, it being deemed a misfortune to our national heritage for these artworks to depart the UK. However, at the time of writing, no buyer has been found yet for the Chandelier, and this feeds into a growing concern that the efficacy of the Waverley criteria is on the wane. This trend is demonstrated by the Committee’s annual report for 2021-2022 which highlighted that only 20% of works deferred under the Waverley criteria for 2021-2022 remained in the UK. Or perhaps the converse view should be taken,; i.e. that the Waverley criteria seeks to provide a balance between a protectionist market and the UK’s centre as an international art market hub. Some might say it provides a second bite of the cherry for institutions and benefactors to save important works for the nation, while ensuring the commerce of the art market does not grind to a halt. While no system is perfect, one could argue it is better than others that stifle market growth.

It is interesting that despite it being an imperfect scheme, institutions are looking at creative solutions to keep national treasures displayed on our shores. In this respect, the collaborative effort by the Getty and the National Portrait Gallery to keep the Painting in the public domain – a first for the UK – is a very exciting development. The innovative agreement provides a precedent which could turn the tide in the effort to keep culturally important artworks on display in the UK, whilst also creating an opportunity for the Painting – described as having “global resonance” – to be regularly enjoyed beyond UK borders. In practice, the Painting will be shared equally between the museums, travelling periodically between the UK and the USA, and will be displayed at the Getty during the 2028 Olympic Games hosted in Los Angeles.

A similar arrangement was reached in 2015 between the Rijksmuseum in Amsterdam and the Louvre in Paris, each museum displaying Rembrandt’s “Portrait of Marten Soolmans” and “Portrait of Oopjen Coppit” in six-monthly rotations. Speaking to Newsweek at the time, Rembrandt scholar Gustav Schwartz was excited by the dual-ownership model, and noted that the inherent risks of regularly transporting the artworks were balanced against more frequent quality checks the artwork would receive as a result.

Whilst dual-ownership of artworks in this way remains relatively novel, we could be witnessing the emergence of a precedent which increases the likelihood of culturally important artworks remaining in the public domain and on public display – a win for art-lovers the world over while keeping the wheels of commerce greased.