Pragmatic not Sympathetic US rejects ADR forum for Nazi looted art

Center for Art Law 25 January 2013

Three special envoys for Holocaust issues later and 14 years after the adoption of the Washington Principles on Nazi Confiscated Art, the promise of a U.S. COMMISSION ON ART DISPLACED DURING 1933-1945 is no more. On November 27, 2012, at the International Symposium on Alternatives to Litigation in Nazi-Looted Art Disputes (the "Symposium"), Douglas Davidson, the current US Special Envoy for Holocaust Issues (the "Special Envoy") delivered a somber verdict, U.S. cannot afford to resolve World War II related art claims by means of alternative dispute resolution (ADR).

The Symposium was hosted by the Dutch Restitution Committee, known as The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War. Many European countries, not only the Netherlands, rely on advice issued by national commissions tasked with processing claims and recommending to the cultural ministries whether particular contested property should be returned to the claimants or retained by the museums as good title owners. In his role as the Special Envoy, Davidson is "responsible for developing and implementing U.S. policy pertaining to the return of Holocaust-era assets to their rightful owners, compensation for wrongs committed during the Holocaust, and Holocaust remembrance."

What did prompt the United States to consider having an ADR forum for resolving World War II art claims in the first place? In 2009, galvanized by the Prague conference and in response to the growing number of Nazi era art-related claims brought in the United States (Museum of Fine Arts v. Serger-Thomschits, 2009 U.S. Dist. LEXIS 58826 (D. Mass. Filed Jan. 22 2008); Detroit Inst. Of Arts v. Ullin, 2007 U.S. Dist. LEXIS 28364 (E.D. Mich. March 31, 2007); Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 208 (N.D. Ohio 2006)), domestic attorneys, politicians and academics began in earnest discussing the dispute resolution models adopted in Europe in hopes of finding an alternative forum to resolve domestic Holocaust-era related disputes.

In the fall of 2009, U.S. Department of State hosted a series of town hall meetings in Washington, DC to discuss the viability of creating an advisory commission in the United States. In November of 2009, Ambassador J. Christian Kennedy, then the United States Special Envoy for Holocaust Issues, circulated the first draft of a proposal for forming such a panel. He solicited and received  comments from the trial attorneys, academics and museum counsel. The comments were mixed, for example, during the second annual Art Litigation and Dispute Resolution Institute, held in New York on November 20, 2009, a group of panelists debated the merits of the proposal. The panelists included Ambassador Kennedy, Charles A. Goldstein, of counsel for Herrick Feinstein and Director of the Commission for Art Recovery, Prof. Jennifer Kreder, NKU Salmon B. Chase College of Law, and Prof. Edward Gaffney, Valparaiso Law School. Goldstein argued that the European models, such as the U.K. Spoliation Advisory Panel and the Dutch Commission are not adoptable to the American legal landscape, because most European museums are almost exclusively government-owned, their the restitution or compensation decisions require government action, where is in the United States, most museums are private non-profit organizations and a federal or state decision to deaccessioning something would be unconstitutional as seizure of property. Kreder and Gaffney were more optimistic about benefits of a U.S. Advisory Panel.

There was little talk about the Panel/Commission since 2009. Three years later, Davidson was asked to comment on the U.S. progress in creating an advisory entity "to deal with ownership disputes over Nazi-confiscated art in the United States." Polite and circumspect ("Like many things that involve the large and disparate and in many ways unique country I come from, this is not so simple a subject. I doubt I can do this topic justice in the brief time allotted to me today, either"), Davidson tried to paint a picture of the "current thinking within the United States Government in regard to this controversial topic."

He admitted that in 2009 there was a basic agreement that a U.S. Commission would provide an ADR forum to allow claims for lesser value objects be brought against the current possessors without claimants incurring high litigation costs. "We have not yet, however, come up with a model of a commission – what qualifications commissioners should have, how they would be appointed, where in the federal government structure the commission would fit, what its exact responsibilities would be, how it would be funded."

Davidson came short of admitting that the idea of forming a U.S. Commission was rejected permanently. He listed many impediments both financial and institutional that all but make a U.S. Commission impossible to create and operate. He identified the following impediments:
  • the unique nature of the American system of government, aka the “Federal Government,” without a  Ministry of Culture. "Given our history, traditions, and inclinations, it also strikes me as highly unlikely that we will create such a cabinet department any time soon."
  • privately owned museums; "As the website of the American Alliance of Museums laments, “Only a small (and shrinking) percentage of America’s 17,500+ museums receive federal funding of any kind.”  Whereby European museums are government owned and sponsored, they are more likely to follow orders from their proper governments. There is less direct control over the American museums.
  • location of the displaced art, "the amount of art displaced between 1933 and 1945 and still in Europe is also considerably larger than the amount of displaced art now in the United States. 
  • inability to locate the commission in the United States Department of State (despite the fact that there is a Cultural Property Advisory Committee under the Department of State already).
In his presentation, Davidson was frequently and at length quoting Ambassadors Kenned and Stuart E. Eizenstat. For example:

"As Ambassador Kennedy pointed out in a speech in Potsdam in 2007 entitled “The Role of the U.S. Government in Art Restitution”: [A]rt restitution in my country has generally involved a private citizen who discovers that an artwork once held by his or her family is now hanging in a museum or private collection. A claimant new to the art field may need to hire experts who can help with this process. On the other side of these cases, we find the holder of the art, usually a museum or collection. This holder may have done some provenance research on its holdings but has sometimes been unaware of the complete history of the individual works. Usually working through their respective attorneys, the two parties attempt to establish and agree on the facts of the case, and then to work out a settlement. Agreements between parties without resort to judicial channels have been frequent. If the talks break down, or if they fail to get started at all, the claimant has the option of turning to the courts. Many museums, as I am reminded from time to time by museum officials, do in fact voluntarily return works of art to those they deem the rightful owners. Our larger art galleries, like our larger art auction houses, even employ officials to research the provenance of their holdings or of the art they wish to sell." 

Davidson's address seemed to cover all the basis, he said things that were for the ADR forum ("One could envision a litigant with a claim that is time-barred attempting to pursue that claim before an art commission, if such a thing existed in the United States, with no statute of limitations.") and against it ("...we need to keep these words in mind as we examine the current state of efforts to create an art spoliation commission in the United States of America, if only because, as I pointed out earlier, our national laws, procedures, and practices are perhaps another example of what we like to call “American exceptionalism.”). He quoted articles stating that litigation is not the best avenue for resolving disputes regarding art works looted during the Nazi era, and yet he posited as to why the US should re-invent the wheel if there are organizations and laws in place already that handle such disputes, namely the HCPO/Holocaust Claims Processing Office, the Federal Bureau of Investigation, The Immigration and Customs Enforcement of the Department of Homeland Security ("I sometimes think these are actually our most effective alternate dispute resolution mechanisms for cases of Nazi-confiscated art.") 

Many quotes and digressions later, Davidson concluded "To put it briefly, no one within the United States Government has given up on the idea of the commission that Ambassadors Eizenstat and Kennedy outlined two to three years ago. ...  it remains United States policy that alternatives to litigation are preferable in dealing with Holocaust-era claims. So, in the end, we have begun to turn our attention outwards. We have begun, in other words, to explore an alternate means of creating an alternate dispute resolution mechanism for art displaced before and during the Second World War." Does not two negatives make a positive, would not an alternative to an alternative to litigation be litigation?! RIP U.S. Art Spoliation Commission.

For the full text of Davidson's presentation, visit U.S. Department of State.
Additional comments about the Symposium.
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