The Governing Council decided to recommend that the topic of Private Art Collections be included in the UNIDROIT Work Programme for the 2017-2019 triennium by the General Assembly, and to assign it a low level of priority. The General Assembly endorsed this recommendation at its 75th session, on 1 December 2016.
This topic was included in the Work Programme 2020-2022 with low priority, allowing for further research into the subject. UNIDROIT continued to examine the subject and to raise awareness among private collectors about ethical acquisition.
In February of 2021, UNIDROIT organised a colloquium with the University of Geneva and the Gandur Foundation for Art in Geneva, entitled “What prospects for ‘orphan works’? Reflections on Cultural Goods without Provenance” (see video). This conference provided an opportunity for collectors, gallerists, lawyers, historians, archaeologists, academics, and museums to come together virtually and share their ideas and perspectives on the ever-growing debate around orphan objects.
As part of the New Work Programme for the triennial period 2023-2025, the establishment of a new working group to address orphan cultural objects was proposed. In September of 2022, a first online meeting of an Exploratory Expert Group was therefore convened, and a second meeting will be held in Rome in March 2023.
Work Programme 2017-2019
By Note Verbale dated 16 October 2015, the Permanent Mission of Mexico to the International Organisations with Seat in Rome transmitted to the Secretariat a document containing a proposal for work on legal issues related to Private Art Collections.
The Governing Council decided to recommend that this topic be included in the UNIDROIT Work Programme for the 2017-2019 triennium by the General Assembly, and to assign it a low level of priority. The General Assembly endorsed this recommendation at its 75th session, on 1 December 2016.
UNIDROIT hosted in Rome, in March 2017, a conference on “Private Collections: Historical and Legal Perspectives”. The Conference was co-organised with the International Society of Research and Cultural Heritage Law (ISCHAL), the Institut des sciences sociales du politique (CNRS-ENS Cachan-Université Paris-Nanterre) and BonelliErede law firm. Professor Elina Moustaira, professor of comparative law at the School of Law of the National and Kapodistrian University of Athens was invited to make a presentation and share a document indicating private law aspects on which UNIDROIT’s particular expertise would be beneficial, which was submitted to the Governing Council in May 2017.
UNIDROIT has continued to explore future steps with respect to legal issues related to Private Art Collections at the recommendation of the Governing Council and with the intention of ensuring that any work would be highly compatible with its mandate and with the provisions of the 1995 UNIDROIT Convention and other relevant work and instruments in its field.
In March 2018, UNIDROIT participated in conferences organized by ISCHAL and UNESCO that took place in Geneva and Paris, respectively. The first, “Provenance of cultural objects,” dedicated a session to the provenance of collections with the participation of lawyers, museum directors and collectors. The second, a capacity-building conference on “Engaging the European art market in the fight against the illicit trafficking of cultural property” aimed at reinforcing due diligence conducted in the European art trade, in particular among collectors. At this conference, the concept of due diligence delineated in the 1995 UNIDROIT Convention was recognised as the standard.
UNIDROIT also conducted preliminary exchanges with the IBA Art, Cultural Institutions and Heritage Law Committee to examine the difficulties collectors face, as viewed by practicing lawyers. The topic of model contracts for collectors, artists, and gallerists was discussed for a potential feasibility study. Additionally, the creation of a restricted study group to identify private law aspects concerning the regulation of Private Art Collections that could fall within UNIDROIT’s mandate was considered.
UNIDROIT also welcomed two interns and a research assistant working exclusively on Private Art Collections issues, who produced three studies that further explored the potential of the topic.
In June 2019, UNIDROIT, the University of Gdansk and the University of Opole (UNESCO Chair in Cultural Property Law) – with the support of ISCHAL – organized a symposium in Gdansk that focused one entire day on private art collections. The issues raised by Professor Moustaira’s 2017 study submitted to the Governing Council were addressed, along with “Private Collections: Historical and Legal Perspective,” in which the notion of collection (and the importance of integrity) was discussed.
In 2019, UNESCO invited UNIDROIT to a forum co-organised with River City Bangkok, Thailand’s oldest auction house, entitled “Exclusive Collector Forum 2019: What To Look For When Buying A Work Of Art?”, to be held on the eve of a major art auction.
Work Programme 2020-2022
The topic of Private Art Collections was included in the Work Programme 2020-2022 with low priority, allowing for further research into the subject. UNIDROIT continued to examine the subject and to raise awareness among private collectors about ethical acquisition.
In February 2021, UNIDROIT, the University of Geneva Art-Law Center (ALC) (an institutional member of UCAP), and the Fondation Gandur pour l’Art (FGA) organised a colloquium in Geneva on the subject of “Orphan Works” in response to the increasing interest in the question of archaeological and ethnographic objects- and, more broadly, works of art- that have incomplete or no documented provenance. This conference, “What prospects for ‘orphan works’? Reflections on Cultural Goods without Provenance,” provided an opportunity for collectors, gallerists, lawyers, historians, archaeologists, academics, and museums to come together virtually and share their ideas and perspectives on the ever-growing debate around orphan objects (see video). Several themes were selected for further development. They included: a working definition of orphan objects; the role of provenance research; the legal status of orphan objects in art collections; defining due diligence in acquiring an orphan object; the issue of proof; the role of databases; the time-limitation of claims on orphan objects; the return and restitution of an orphan object.
In March 2022, UNIDROIT, the University of Geneva Art-Law Centre and the Fondation Gandur pour l’Art were invited to a conference on “Due diligence, Digital Databases and Cultural Property Law and Policy” by the Harry Radzyner Law School of Reichman University in Herzliya (an institutional member of UCAP). The conference featured a specific panel on the topic of orphan objects.
UNIDROIT also organized an event entitled ‘What Museums and Collectors Should Know about Provenance and Due Diligence: An International Perspective’ in March 2022 at the Tel Aviv Museum of Art.
Finally, UNIDROIT Governing Council member Mr. Jorge Sanchez Cordero invited UNIDROIT to present the project on Private Art Collections at a conference on ‘Culture and Law’ organised by the International Academy of Comparative Law and the Centro Mexicano de Derecho Uniforme, which took place on 21 and 22 April 2022 in Mexico City.
Orphan cultural objects are artistic, archaeological, or ethnographic material lacking a complete provenance. Objects may become orphans through both illicit and licit means such as theft, illegal excavation or export, wars, ethnic persecution, past colonial domination, passage of time, or poor record keeping. Without proof of a legally sound provenance, acquiring or disposing of an orphan object presents an ethical and legal risk.
The notion of an orphan object is not unique to cultural property law. A similar concept exists in intellectual property- specifically copyright- law, to refer to works for which the author is unknown. In cultural property law, the question is one of history of ownership as opposed to creation, but the core issue -who owns what and how to establish that ownership- remains the same.
UNIDROIT has identified an increasing interest in the legal questions surrounding orphan objects. It is well-understood that any acquisition of cultural material must be made in accordance with national laws and international conventions. But what can be done with works that have no documentation? What if the holders of such material wish to move, sell or lend them? Many collectors and dealers prefer to avoid potential problems by coming up with discreet solutions, primarily private sale, which encourages the clandestine market and results in a total lack of transparency detrimental to the preservation of objects and industry as a whole.
The Exploratory Expert Group
As part of the New Work Programme for the triennial period 2023-2025, the establishment of a new working group to address orphan cultural objects was proposed. In September of 2022, a first online meeting of an Exploratory Expert Group was therefore convened (see the Summary Report). This group is a collaboration between industry and legal experts to explore the issues surrounding orphaned cultural works, particularly those themes identified as part of the 2021 orphan object conference in Geneva.
The project focuses on “Art collections and orphan cultural objects” and the study of orphan objects and their connection with collections are prioritized. It should be noted that orphan objects are also frequently found in public collections, due to differing standards of diligence at the time of the acquisition or to poor record keeping. As result, the working group expands their scope of study to encompass not only private collections, but also public collections (as defined in art. 3.7 of the 1995 UNIDROIT Convention).
The goal of this group will be to create a set of principles or guidelines to support national legislators who intend to address the matter of orphan objects, along with practical tools for those collections actively wishing to deal with their orphan objects. Some tools have been proposed, such as specialised databases or a ‘clearing house’ where orphan objects could be brought in order for their provenance to be cleared. Furthermore, the Secretariat has proposed that the Governing Council consider enhancing the level of priority given to the project on Private Art Collections during the 2023-2025 Work Programme to a medium priority activity.
The second meeting of the Exploratory Expert Group is scheduled for March 2023 in Rome.