PRIVATE ART COLLECTIONS

STUDY LXX B – PRIVATE ART COLLECTIONS

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 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” . 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.

Work Programme 2017-2019

Following a proposal for work on legal issues related to Private Art Collections by the Permanent Mission of Mexico to the International Organisations with Seat in Rome transmitted to the Secretariat, 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 explored 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.

Several conferences were held to discuss the issue of private art collections:

Private Collections: Historical and Legal Perspectives” hosted by UNIDROIT in Rome in March 2017. 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.

Provenance of cultural objects” organised by ISCHAL in Geneva in March 2018, which dedicated a session to the provenance of collections with the participation of lawyers, museum directors and collectors.

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.

 

Work Programme 2020-2022

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. Another event was organised ‘What Museums and Collectors Should Know about Provenance and Due Diligence: An International Perspective’ 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.

 

Work Programme 2023-2025

On a proposal by the Secretariat, endorsed by the Governing Council in 2022, the General Assembly enhanced the level of priority given to the project focusing on orphan cultural objects to a medium priority activity in the new Work Programme 2023-2025 which permits the convening of a Working Group, together with our partners.

Orphan Objects

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

  • First meeting of the Exploratory Expert Group

The UNIDROIT Secretariat, having identified the subject of orphan objects as the focus of the project, and waiting for the General Assembly to upgrade the project in order to secure funding, an Exploratory Expert Group was convened on 12 September 2022 for a preliminary discussion on selected topics. The meeting was held in a hybrid format, in Geneva and online.

The purpose of the meeting was to initiate a discussion among legal experts, and also representatives of the art market and the museum community, on a certain number of selected relevant issues (including, inter alia, the scope of the project, definitions, the role of provenance research, the legal status of orphan works in art collections – private or public -, the due diligence required when acquiring an orphan work, issues of proof, and the role of databases).

Summary Report

  • Sub-group meeting on definitions

An informal sub-group met in Rome at the seat of UNIDROIT (and online) on 3 March 2023, moderated by Prof. Marc-André Renold (Art-Law Centre, University of Geneva), to discuss the issue of the definition of “orphan objects”.

Summary report

  • Second meeting of the Exploratory Expert Group

The second meeting of the Exploratory Expert Group met in Rome (and online) on 29 and 30 March 2023. It discussed the proposed definition submitted by the subgroup as well as the reports presented by two groups of stakeholders (collectors and the art market).

Summary report

 

The Working Group

The first meeting of the Working Group will be held on 2 and 3 May 2024 in Rome.