Here's a post composed by Kevin Winters, an enthusiastic member of the Scottish IP community and something of a guest blogger on the IPKat. It addresses yet another art ownership claim arising from Europe's tragic mid-20th century history. Let Kevin explain in his own words:
Last month, a complaint was submitted to the Washington courts,
arguing that the surviving heirs of a Jewish consortium of art dealers should
be allowed to recover a treasure trove that was sold in Germany over 70 years ago. While many in the art world will be familiar with the story of the
Guelph Treasure, or ‘Welfenschatz’, a brief overview is called for as the facts of
the dispute are complicated.
What is the background?
As the Guardian recently reported here,
the Welfenschatz is one of the largest collections of medieval religious works
that the world has ever seen. Most of the collection was amassed following work on the Braunschweig cathedral, and many of the artefacts are known to be
at least 800 years old. The history of
this treasure trove is intertwined with one of the darkest phases in European history.
The Welfenschatz eventually came into the possession of a consortium
of Jewish art traders, when they purchased it from an aristocrat in 1929. Difficulties arose with the onset of the
Great Depression, meaning that the consortium was unable to sell the collection
as quickly as they would otherwise have expected. The facts, as they are reported, are that at
some point in 1935 the consortium sold the remainder of the collection to the
German state of Prussia. By this time, Germany was under the rule
of Adolf Hitler and the Nazi regime – Prussia itself was governed by a leading figure in the Nazi regime, Herman
What is the dispute?
The surviving heirs of the Jewish consortium, one American and one
British citizen, claim that the sale of the treasure – currently estimated to be worth US$226 million –
was illegitimate, owing to the presence of
duress on the part of the Nazi regime resulting in an unfair price being
paid. The collection is currently housed
in the Bode museum in Berlin.
dispute has already been brought before the municipal authority in Germany
that are responsible for the administration of all German museums, the Prussian Cultural Heritage Foundation. The complaint was subsequently passed to the German ‘Advisory Commission in connection with the return of Nazi-confiscated art, especially Jewish property’, for a non-binding recommendation on the dispute. Both the
Foundation and the Commission, having applied the applicable law and the ‘Washington Principles’ (a set of guidelines relevant to claims regarding
Nazi-confiscated art that was agreed in the Washington Conference on
Holocaust-Era Assets in 1988) found that there was no legitimacy to the heirs’ claim. The press release from the Foundation is
and the decision of the Advisory Commission (in German) is available here.
While the Heritage Foundation is the responsibility of
the German Federal Government and the German states, it cannot be described as a
judicial body. The Advisory Commission
on the other hand was created with the express purpose to hear cases of
disputes concerning the seizure of cultural property during the Nazi
regime. While the Commission’s recommendations are non-binding, they do tend to be respected by
other bodies, as reported here.
The dispute has since been brought to the US against both the Federal
Republic of Germany and the Prussian Cultural Foundation. The complaint lodged with the court in
Washington is available here.
What is next?
The claim is currently before the Washington courts. The German authorities have recently
recognised the collection as a piece of immense cultural importance, meaning
that it cannot leave the country without the permission of the German culture minister
– as was reported here.
The legal representatives of the surviving heirs cite the US Foreign
Sovereign Immunity Act of 1976, the text of which is available here, in support of their claim that the US courts have jurisdiction to hear the
dispute. The legislation normally
excludes any action from being raised in the US where the defendant can prove
that it is a “foreign state”. However, there is an exception to this rule:
the ‘commercial exception’, which provides that the US courts have
jurisdiction to hear a dispute
- in which
the action is based upon a commercial activity carried on in the United States
by the foreign state; or
- upon an
act performed in the United States in connection with a commercial activity of
the foreign state elsewhere; or
- upon an
act outside the territory of the United States in connection with a commercial
activity of the foreign state elsewhere and that act causes a direct effect in
the United States;
German state is linked to the Foundation through the membership of its
controlling body, which is composed of German Federal Government
representatives, and through its being a creation of German law. Legal representatives of the surviving heirs
have argued that the activities of the Prussian
Cultural Heritage Foundation, in partnership with many American museums –
the loaning of collections of art, publishing of
books for sale etc – meets the commercial exception. As yet, neither Germany nor the Foundation has entered a defence.
The difficulty with this claim -– should the US courts decide to hear it -– is that there does not appear to be any new evidence to hear. The German authorities found
that there was no historical evidence of a forced sale of the treasure as a
result of Nazi persecution, and the US courts will presumably hear the same
evidence that was the subject of the Association’s decision. One does wonder how
different any decision of the US courts would be compared to that of the German
authorities, on the same evidence.
The Guelph Treasure is one of the largest collections of religious
works to have been reported in recent history. How will the US courts approach the issue of
jurisdiction, and will their decision add anything to the debate about how
courts handle similar claims in the future? It is not merely the Guelph Treasure but the methodology for determining the validity of historical claims that is at stake.
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