The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects
– an overview –
Why a new Convention?
When it comes to international claims in respect of cultural objects, the common law offers no satisfactory solutions, and the existing Convention texts either do not cover, or do so only in part, the private law aspects of cultural property protection (one of the chief obstacles to the international recognition by some States of rules in this area being the protection of the good faith buyer). UNESCO therefore asked UNIDROIT to draft a new instrument that would take its cue from the 1970 UNESCO Convention but would also incorporate 25 years of reflection on the subject of illicit trafficking (following an upsurge of this threat worldwide, States were just beginning to re-thing their positions on this subject and becoming more willing to co-operate in this field).
The 1970 UNESCO Convention and the 1995 UNIDROIT Convention
The UNIDROIT Convention underpins the provisions of the 1970 UNESCO Convention, supplementing them by formulating minimal legal rules on the restitution and return of cultural objects. It guarantees the rules of private international law and international procedure which make it possible to apply the principles set down in the UNESCO Convention. The two Conventions are at once compatible and complementary.
The 1995 UNIDROIT Convention
As soon as negotiations got underway, two more or less homogeneous camps confronted one another. One grouped supporters of the free movement of cultural objects worldwide, while the other campaigned for national protection of the cultural heritage. The former group were intent on limiting the future Convention’s scope of application to the utmost and on safeguarding the protection afforded to the good faith buyer within their jurisdictions. Their opponents on the contrary wished to extend the principle of restitution of stolen or illegally exported cultural objects as far as possible, thereby ensuring optimal protection of the national cultural heritage on the international stage. It took six years of negotiating to bring these antagonistic views closer together and to produce a Convention that was adopted at a diplomatic Conference held in Rome on 24 June 1995 and attended by over 70 States. The Convention entered into force on 1 July 1998.
When a museum has reason to believe that a cultural object has been illegally exported from its country of origin, it is prevented from buying it by the ICOM Code of ethics. If the object in question is bought on the international art market by a person or institution acting in good faith, the country of origin presently has no option but to buy it back. While some countries can afford to do so, many others do not have so much money to spend on buying back rare objects belonging to their national cultural heritage. Now, however, with the advent of the UNIDROIT Convention, a dispossessed person or institution or State of origin can claim the object in accordance with procedures that differ depending on whether the object was stolen or illegally exported.
The real purpose of the Convention is not to enable or trigger a certain number of restitutions or returns (of which perforce there will be relatively few) through the courts or by private agreement, but to reduce illicit trafficking by gradually, but profoundly, changing the conduct of the actors in the art market and of all buyers.
If a cultural object has been stolen, it must be returned – restitution is an absolute duty unless the limitation period has expired. The only question that arises is whether compensation must be paid.
Probably the most important provision in the entire Convention is its Article 3(1), which enshrines the principle that the possessor of a cultural object that has been stolen must return it whatever the circumstances. Rather than a moral judgment or choice between the two systems, which would imply penalizing either the original owner or the good faith buyer since they cannot both be given equal protection, a pragmatic solution was worked out: which rule was most likely to curb illicit trafficking? The answer was to compel the buyer, on pains of having to return the object, to check that the object was being lawfully traded. This principle, coupled with the possibility of compensation for the buyer who can prove that he acted “with due diligence” (Article 4(1)), constitutes one of the most important legal rules in the fight against illicit trafficking in cultural objects. Its effect on the art market, which has tended to be reluctant to reveal the origin of cultural objects and where buyers are not unduly curious, will be immediate.
Indeed, it is of prime importance to strike at one of the key links in the chain of international traffickers in cultural objects by taking a fresh look at the problem of how to protect the good faith buyer in the light of the principles governing the protection of the cultural heritage. This Convention will, when it will gain wide acceptance, make it possible to shift the responsibility onto the only person likely to be caught: the final purchaser, who so far has been able to hide behind the diversity and incoherence of existing legal systems in order to appropriate stolen objects or objects the illegal origin of which he is bound to suspect. The underlying principle holds since the sums involved and the special nature of the objects in question can leave no doubt that the so-called good faith buyer must have experience. Moreover, to be effective any method adopted must needs recognise the principle that supply is inexorably linked to demand, and that as in the case of drugs, lasting results can only be obtained by cracking down on illicit trafficking.
The exporting countries’ argument that a dispossessed owner is not always in a financial position to pay compensation to the good faith buyer and may therefore not be able to get the object back anyway, may be countered by recalling that the Convention refers to “fair” compensation, not to reimbursement of the sum paid, and that the criteria of “due diligence” are such (Article 4(4)) that it will always be more difficult for owners to prove that they acted with due diligence and are therefore entitled to compensation.
The return of an object after it has been illegally exported is, for its part, subject to one condition, i.e. it must be shown significantly to impair the preservation of scientific information or that the cultural object in question is “of significant cultural importance”. Requests for its return may only be made by the State whence the object was illegally exported – the Convention considers an object that was removed under a temporary export permit for an exhibition and not returned in accordance with the terms thereof as having been illegally exported.
The 1970 Convention was the first serious attempt at international level to address this problem, but the duty on States Parties to ensure the return of illegally exported cultural objects to their countries of origin was severely restricted by its Article 7. The UNIDROIT Convention is going go much further in securing the return of cultural objects to their countries of origin in many more cases.
Since it proved well-nigh impossible to agree on export bans that would be both recognised and applied, the drafters of the Convention ultimately opted for a series of interests that all States agreed should be protected (Article 5(3)). The Convention does not recognise national export bans issued on political or economic grounds, and requires evidence of a significant impairment of chiefly cultural, but also scientific or historical interests. It should be recalled that the list provided is not exhaustive, since each Contracting State is free to apply more favourable rules to the return of an illegally exported cultural objected than those provided by the Convention (cf. Article 9) and indeed to take into account other interests than those listed in Article 5.
Where stolen or illegally exported cultural objects are transmitted by way of inheritance or succession, the beneficiary has the same duties as a good faith possessor who acquired the object by transfer. This is important, in particular in museum practice, where it is quite common for private persons to make donations or bequests to museums or similar institutions of objects the origin of which may be doubtful.
Another type of cultural object covered by the UNIDROIT Convention that must be mentioned is the products of archaeological excavations, which are only covered by the 1970 Convention to the extent of the interpretation given by some States to its Article 9. The UNIDROIT Convention for its part contemplates the possibility of an action being brought on the basis of its provisions in respect either of theft or of illegal export: an object is considered stolen “when consistent with the law of the State where the excavation took place” (Article 3(2)) or when subparagraphs (a), (b) or (c) of Article 5(3) apply, which refer to the objects from archaeological sites. The type of proceeding chosen will depend on how difficult it is to adduce proof (is the object a product of excavation or has it been illegally exported?).
Other rules laid down in the Convention show how the compromise which it embodies accommodates different legitimate concerns. On the one hand, there is the matter of legal security for market operators, and for public and private collections. This need is met by requiring payment of compensation where due and by the clarity of the non-retroactivity clause (Article 10). The drafters of the Convention opted for a solution resting on the general principle (Article 10(1) and (2)) which states that the Convention will apply solely to cultural objects stolen after the Convention entered into force in respect of the State where the request was brought, as well as to objects illegally exported after the entry into force of the Convention in respect of the requesting State and of the State where the request was brought. However, paragraph 3 specifies that the Contention “does not in any way legitimise any illegal transaction of whatever which has taken place before the entry into force of this Convention” and does not “limit any right of a State or other person to make a claim under remedies available outside the framework” of the Convention.
The need for legal security is likewise met by the provision of a relatively short limitation period. The time limitation is three years from the time when the claimant knew the location of the cultural object and the identity of its possessor (and this applies also to public and suchlike collections that may have no limitation period attached).
On the other hand, the text takes into account the material and moral interests of “exporting” States and, more generally, those of public collections (defined by Article 3(7) for the purposes of the Convention), religious and cultural institutions, and the protection of the archaeological heritage and historic monuments; it does so by creating a group of cultural objects subject to a very long time limitation (75 years) and, in some cases, no time limitation at all. That same special regime extends to sacred objects or objects of significant cultural importance for indigenous communities. These provisions translate a concern for a more balanced dialogue of cultures.
Finally, the “reasonable efforts” referred to in Article 4(2) to ensure that it is the person(s) responsible for the illegal trafficking who pays compensation rather than the owners or the requesting States also evidence a concern for the interests of the exporting States.
The text of the UNIDROIT Convention is the outcome of a compromise, and as with all compromises, it does not completely satisfy all of everyone’s needs. However, a closer look at the Convention shows that none of the parties concerned by the Convention suffers unfairly. The Convention is evidence of the very real efforts made by legal scholars to marry justice to realism and to try, to the extent possible, to establish a foundation to build on in the years to come. Experience has shown, however, that it is one thing to adopt an international Convention, and quite another to guarantee its effective application. Now, therefore, is the time to address the legitimate concerns expressed by some – yet it would be a great pity if the effort made were not understood as such by those interested in the cultural heritage or otherwise involved in the preservation and protection of cultural objects.
Professor Iacopo Donati is the UNIDROIT/Bank of Italy Chair Holder and is mainly responsible for assisting in the Bank Insolvency project. He is Professor of Corporate and Insolvency Law at the University of Siena, and coordinates the research project ‘Pro.Re.Ba.’ (Proportionating rules on bank crisis prevention and management to the case of retail banks), which has received funding from the Italian Ministry of University. He has previously taught corporate law at the University of Venice ‘Ca’ Foscari’, at the University of Florence and at the University of Rome ‘Tor Vergata’.
Professor Donati is the author of several publications on corporate law, restructuring, insolvency law, and bank crisis management. On the same topics, he has been invited as a speaker to various international and national conferences and participated in some high-impact international, European, and national research projects. Professor Donati’s education includes a Ph.D. in Corporate Law (University of Rome ‘La Sapienza’), an LLM in Corporate Governance (Stanford Law School), and a Law Degree with honors (University of Florence). He is qualified as an attorney in Italy and in the State of New York (USA).
Ms Olga Fonotova is an Associate Professor of the Faculty of Law (Department of Legal Regulation of Business) at the Russian National Research University “Higher School of Economics” in Moscow. She holds a PhD degree cum laude in private law / private international law from the Lomonosov Moscow State University (2006). Her academic and teaching interests cover private international law, international and national commercial law, with a focus on unified and non-state legal regulation of cross-border commerce.
Olga is a Russian law qualified practicing lawyer in the sphere of national and international commercial and corporate law with 20+ years’ experience in leading law firms. As part of her legal practice, she has advised multinational corporations on the setting up of multi-jurisdictional commercial relations, on the formation / termination of international joint ventures, restructuring of assets, and financing / refinancing of projects. For her work on commercial and corporate legal matters she was included in the international rating of leading lawyers “The Best Lawyers® in Russia” (2018 – 2022).
She is a UNIDROIT alumna (2011) and a Correspondent of UNIDROIT in Russia (2023 – 2025). From 2016 to 2021 Olga was a member of the ICC Commission on Commercial Law and Practice (ICC CLP) and a member of the Association of European Business (AEB) in Moscow.
Allan M. Mukuki, PhD Candidate (Navarra, Spain), LLM (Groningen, Netherlands), PGDip (KSL), LLB (Hons) (UoN), ACIArb (London), Advocate of the High Court of Kenya.
Allan Mukuki is an Advocate of the High Court of Kenya as well as a Commissioner for Oaths. He is presently a PhD Candidate at the University of Navarra in Spain. He is also a holder of an LL.M in International Law and the Law of International Organizations, from the University of Groningen in the Netherlands. He has an LL. B (Hons) from the University of Nairobi, he is a Member of the Cha
rtered Institute of Arbitrators (London). He further holds a post-graduate diploma in law from the Kenya School of Law. Allan is also a scholar from the Hague Academy of International Law.
Some of his many roles in the legal profession include Director of International Partnerships; a Doctoral Fellow; member of the Management Committee and moot court coordinator, all for Strathmore Law School; Research Fellow for the African Region (Kenya), for the European Research Council Grant Project on the interpretation of customary international law; and Acting Director for the Strathmore Institute of Advanced Studies in International Criminal Justice (SIASIC)
Allan has previously worked at A.F Gross Advocate; in various legal institutes; in governmental agencies and in the Judiciary of Kenya. He was also a Legal researcher in the Office of the Solicitor General, Kenya, for the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), a case that was before the International Court of Justice. His main areas of specialization include Public International Law, The Law of International Organizations, International Humanitarian Law, International and Regional (EAC) Refugee Law and Legal Policy Development.
Further, Allan has been involved in various national and international legal consultancies and projects; he has published several peer reviewed legal articles, a legal monograph and presented several legal papers in international conferences around the world. He has also developed several policy documents for Strathmore University as well as (currently operational) manuals and laws for the operation of the Judiciary as well as governmental agencies and regional agencies such as IGAD.
ANDREA SANTACOLOMA
Director
PROFESSIONAL PRACTICE
Andrea Santacoloma is a Panamanian lawyer that focuses her practice on international commercial arbitration.
Prior to joining Adell & Merizalde, Andrea was the Deputy Director for Latin America of the ICC International Court of Arbitration for 5 years. In this role, she gained vast experience in the internal functioning of the ICC’s Secretariat and Court and saw first-hand the work of hundreds of arbitrators and ICC Court Members in the region. Andrea was also in charge of identifying new opportunities and potential users of the ICC Dispute Resolution Services (ICC DRS) in Latin America, in liaison with the ICC National Committees and other institutions in the region. She also worked as a lawyer advising local and international clients on business and corporate law and M&A in 3 Panamanian law firms.
She is currently the Executive Director of the Latin American Arbitration Association (ALARB), one of Latin America’s leading associations gathering practitioners and arbitrators, which seeks to encourage the use of arbitration and foster initiatives for the development of international arbitration in the region.
In July 2022, the G
overning Council of the International Institute for the Unification of Private Law (UNIDROIT) appointed Andrea as a Correspondent for Latin America. Namely, Andrea was appointed as a Correspondent for the Republic of Panama for the period 2022-2025.
EDUCATION
• American University Washington College of Law, LL.M. in International Arbitration and Business Law
• International Training Centre of the International Labor Organization (ILO) jointly with the United Nations Commission on International Trade Law (UNCITRAL), Università degli Studi di Torino, and University Institute of European Studies (IUSE), LL.M. in International Trade Law & Dispute Resolution
• Universidad Católica Santa María La Antigua, LL.M. in Corporate Law
• Universidad Católica Santa María La Antigua, Degree in Law and Political Science
• Centro de Estudios Regionales de Panamá, Diploma in Entrepreneurship and Management of Small and Medium Enterprises
Bar admissions
Republic of Panama
Languages
Spanish, English, Italian (intermediate)
asantacoloma@adellmerizalde.com
+507 370 4155
NAME: PROF. DR. HERNANY VEYTIA (LL.M. YALE)
AFFILIATION DIRECTOR BNM-CAMBRIDGE STUDY CENTRE ON SUSTAINABLE INVESTMENTS
PRESENTATION
Professor of law, international strategic consultant, arbitrator, and entrepreneur. Hernany Veytia is very comfortable with complex, high-profile and confidential transactions. Her consulting experience as partner of BNM and Deloitte enables her to focus on and add value to the sustainable and commercial aspects of each deal. Frequently she leads transdisciplinary teams to deliver fact findings and legal opinions, feasibility studies and turn-key projects for banks, governments, international organisations, and corporations willing to expand or withdraw operations in other jurisdictions.
In Prof Veytia’s experience UNIDROIT works have been very useful to understand not only the foreign law, but also to recognise the cultural, political, and economic factors at play, and the way national and international regulators operate-and cooperate. In her opinion, UNIDROIT instruments have been of utmost importance for the legal strategies she designed for:
• DANPREIT (Dispute Analytics Platform for Real Estate Investment Trusts in the Agriculture, Construction and Mining industries).
• TELEKAIROS, innovative methodology that incorporates the use of space assets.
• Corporate art collections, restitutions, including donations, sponsorships, and loans to museums.
• Contracts used by a German waterworks company willing to grow in all the Caribbean and Central American countries.
• Liquidation of commercial and investment banks
• IPOs and reverse mergers for companies in the extraction industries (Canadian stock exchange), ILS listed in Bermuda and African sovereign funds listed in London.
• Franchising and other commercial contracts in the food & drinks, health, aero-space, and automotive industries.
In the last three decades Prof. Veytia has lived, and successfully completed investments and disinvestments in more than forty countries in the five Continents. She is frequently appointed as arbitrator and invited as speaker on risk transfers at international industry conferences in fields of her expertise: energy (both renewable and traditional), artificial intelligence, infrastructure, mining, real estate, agriculture, rail, space, automotive, and franchising. She sits in the board of directors of companies in Europe including the United Kingdom.
Anna Veneziano is the Deputy Secretary General of the International Institute for the Unification of Private Law (UNIDROIT). She is a Professor of Comparative Law at the University of Teramo, Italy, where she was formerly the Director of the Department of Private Law. She has also formerly been a tenured Professor of European Property Law at the University of Amsterdam (UvA). Her education includes a Law Degree with honours from the University of Rome La Sapienza, an LL.M degree from the Yale Law School funded by a Fulbright scholarship, and a PhD degree from the University of Florence (Italy).
Her main research and publication areas are on secured transactions as well as international, comparative, and European contract and sales law. Before joining UNIDROIT she was a member of the Italian delegation with respect to the Cape Town Convention on International Interests on Mobile Equipment and its Aircraft Protocol as well as its Space Protocol. She was also a member of the Study Group on a European Civil Code and of the Compilation and Redaction Group on a Draft Common Frame of Reference on European Private Law (DCFR), and of the restricted Expert Group set up by the European Commission on a common European law on sales.
P
rofessor Ignacio Tirado was appointed Secretary-General by the Governing Council at its 97th session, and officially took office on 27 August 2018. A national of Spain, Professor Tirado (Commercial, Corporate and Insolvency Law, Universidad Autónoma of Madrid, Spain) holds a PhD from the Universities of Bologna and Autónoma de Madrid and an LLM from the University of London. Professor Tirado has been a Senior Legal Consultant at the World Bank’s Legal Vice-Presidency and Financial Sector Practice for more than nine years, having also consulted for the IMF on insolvency related matters as well as for the Asian Development Bank on commercial legal reform.
Amongst other accolades to his professional experience, Professor Tirado is a founding member of the European Banking Institute, an International Fellow of the American College of Bankruptcy and has been Director and Academic Co-Chair of the International Insolvency Institute.
A Swedish national, Ms Lena Peters grew up in Italy where she attended an English school. In 1978 she took her Juris Kandidatexamen at Stockholm University followed by a Master of Laws from King’s College, London (1979). Since 1985 she has been with UNIDROIT, first as Research Officer, lastly as Principal Legal Officer, her main duties being Secretary to the Working Group for the Preparation of Principles of International Commercial Contracts, Secretary to the Study Group on Franchising, Secretary to the Committee of Governmental Experts on Franchising.She also collaborated on the project for the preparation of the ELI-Unidroit Model European Rules of Civil Procedure. She is currently Managing Editor of the Uniform Law Review and responsible for publications at UNIDROIT.
Marina Schneider is Principal Legal Officer and Treaty Depositary at UNIDROIT. She studied law at the University of Strasbourg (France) and Paris I – Panthéon Sorbonne. She joined the UNIDROIT in 1987 and was involved in the elaboration and French versions of most UNIDROIT instruments since. She is in charge of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and of the UNESCO-UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. She is the author of the Explanatory Report of the 1995 Convention and many articles on the Convention and other international instruments in the field. Ms Schneider is also responsible for the project on private collections and for the UNIDROIT Convention Academic Project (UCAP). She is member of the Board of the International Society for Research on Art and Cultural Heritage Law (ISCHAL).
Professor of Commercial Law, Carlos III University of Madrid. Currently, Sir Roy Goode Scholar at UNIDROIT, Rome, 2021-2022. Chair of Excellence 2017-2018 at University of Oxford (Uc3m- Santander Program), affiliated to Harris Manchester College. Previously Distinguished Visiting Professor and fellow of a number of Academic Institutions. Arbitrator of Madrid Court of Arbitration. Member of ELI (European Law Institute) Council and Executive Committee. Member of the Expert Group of the European Commission on Liability and New Technologies and member of the Expert Group of the European Observatory of Platform Economy; the International Academy of Commercial and Consumer Law; the expert group of the Inclusive Global Legal Innovation Platform for Online Dispute Resolution – UNCITRAL and Hong Kong Department of Justice. Expert of the UNIDROIT Study Group on the MAC Protocol of the Cape Town Convention on International Interests. Delegate of Spain to UNIDROIT for the adoption of the Protocol, delegate of Spain in Working Group VI of UNCITRAL on secured transactions and in Working Group IV on Electronic Commerce. Member of UNIDROIT Working Groups on Enforcement and Warehouse Receipts.
William Brydie-Watson is an Australian lawyer who specialises in secured transactions law and private international law. Before joining UNIDROIT, William was a government lawyer in the Private International Law and International Arbitration section of the Australian Attorney-General’s Department, where he worked primarily on treaty negotiation and the implementation of private international law treaties in Australia. At UNIDROIT, he is primarily responsible for the implementation of the Mining, Agriculture and Construction (MAC Protocol) to the 2001 Cape Town Convention on International Interests in Mobile Equipment and the development of a Model Law on Factoring. William also serves as UNIDROIT’s liaison with the Asia Pacific Economic Cooperation (APEC) forum and as manager of the Institute’s Scholarship and Internship Programme. Admitted to practice in New South Wales and the High Court of Australia, he has a Bachelor of Arts (honours), a Bachelor of Laws and a Master of Laws from the Australian National University. William also lectures on International Secured Transactions Law at the Eotvos Lorand Faculty of Law in Budapest.
