Landscape with Smokestacks by Degas

One of these is the Searle/Gutmann litigation relating to the Degas painting Landscape with Smokestacks (“Paysage avec Cheminées”). The painting had belonged to Friederich Gutmann, a German Jewish banker who was killed in the concentration camp of Theresienstadt in 1943. The painting had been sent to Paris in 1939, where its track was later lost. In 1995, the two surviving Gutmann children traced the Degas to the collection of Daniel Searle, a Chicago collector who had bought it in 1987 from a reputable US dealer. The litigation that ensued determined that the painting had entered the United States in 1951 where it had been acquired by a New York collector who had allegedly bought it from the brother-in-law of Hans Wendland, a Swiss-based German dealer who had been involved in selling many of the works of art looted and seized in France by the Einsatzstab Reichsleiter Rosenberg.^{Footnote 23}

After litigation had begun in New York and Chicago, the case was eventually settled through a form of co-ownership: the ownership of the work of art was allotted to the claimants and the defendant in equal shares, each being given freedom as to what he wanted to do with his share. Searle gave his “half” of the painting to the Chicago Art Institute (of which he was a trustee) and the Art Institute bought the Gutmann heirs’ second “half,” which was evaluated at fair market value. A label was attached to the painting exposing its history, the misappropriation of the Gutmann art collection and the settlement entered into.^{Footnote 24}

The Marriage of Tobias and Sarah by Steen

Another co-ownership case was that of the Jan Steen painting, The Marriage of Tobias and Sarah, which was the result of a rather unusual procedure of reunification of two parts of the original painting which had been separated long before the Second World War. After they were reunified through a relatively complex restoration in 1996, a claim was made on one of the parts by the heir of the Dutch dealer Goudstikker, which ended up in a co-ownership between the heir of Goudstikker and the City of The Hague, at a ratio of 76%/24%. A 2008 binding advice of the Dutch Restitution Committee ordered the dissolution of the co-ownership and the sale of the 24% of the painting to the heir of Goudstikker.^{Footnote 25}

The Teotihuacan Mosaics

An interesting case, taken from the field of antiquities is that of the Murals of Teotihuacan. A long dispute between Mexico and the San Francisco Museums of Fine Arts on the ownership of mural paintings coming from the famous Teotihuacan temples in Mexico.^{Footnote 26} In 1981 an agreement was entered into according to which a minimum of 50% (in the end almost 70%) of the murals were to be returned to the Anthropological Institute of Mexico and the rest were to be retained by the San Francisco Museums.^{Footnote 27} A participant to the lengthy negotiations commented in the following way: “Showing a great cultural and political sensitivity, all the involved parties finished by agreeing to say they would not be able to agree ... on the ownership issue. We came to agreeing, however, on the importance of the collection and on the necessity to work together in order to protect and preserve it; it is therefore on this basis that we cooperated.”^{Footnote 28}

The Macchiaioli Paintings

A less-known case relates to Macchiaioli paintings which had been acquired by the Dunedin Public Art Gallery in New Zealand. It appeared, while the paintings were on loan to an Italian museum, that they had actually been looted during the Second World War from Cino Vitta’s private collection. In order to unblock the matter, and after three years of litigation, the Italian Court suggested that a negotiated settlement would be far better and the parties did as a matter of fact come to an agreement according to which the paintings were apportioned among the parties, two going to the family and three to the Museum.^{Footnote 29}

It therefore appears that some cases have actually been solved by a common or shared ownership regime. Such a regime is not necessarily meant to last very long, especially when the interests of the co-owners do not coincide. But the most interesting aspect of these cases is that they show the emergence of a common (or shared) cultural interest which can be useful in resolving the dispute among the parties. Such an interest was the subject of a publication co-authored by the undersigned and Marie Cornu of the French CNRS, and our conclusion was that ownership by one or the other should probably not be the preferred solution anymore and that the terms of the equation might not contain sole ownership, at least in the classical Roman law understanding of “usus and abusus.”^{Footnote 30}

A highly interesting case where such an interest was identified, is the Machu Picchu matter which saw the state of Peru opposed to Yale University with regards to many objects which the US archaeologist Hiram Bingham had taken to the United States after re-discovering the now famous Inca site in Peru.^{Footnote 31} In the partnership agreement that was entered into between the parties in 2011 several elements were of importance, and not only the restitution of a certain number of the archaeological objects: a common international research center was established in Cusco and several academic exchanges, not only of objects, but also of researchers, were made possible.^{Footnote 32} The cooperation between the Universidad Nacional de San Antonio Abad del Cusco and Yale University was recently reinforced by a 4 June 2015 “Memorandum of Understanding.”^{Footnote 33}

It thus appears that the issue of actual ownership was not, in all these case, perceived as the central one, much more importance being given to issues of cultural cooperation.

The Swiss Ancient Manuscripts Case

In this particular case, the claim related to mediaeval manuscripts taken as war booty by the Zurich army during its victorious occupation of St. Gallen around 1710. Many years later, after numerous unsuccessful attempts to obtain restitution by St. Gallen, a mediation took place between the two Cantons, under the auspices of the Swiss Confederation. The mediation agreement eventually entered into by the Cantons in 2004 provided that Zurich was to be considered the owner of the manuscripts, even though Zurich had been the party to loot the objects. However, Zurich simultaneously agreed to lend the manuscripts on a long term basis to St. Gallen. In addition, there is language in the agreement to the effect of a recognition by Zurich of the cultural significance of the manuscripts for St. Gallen. Special provisions are also set forth regarding the Terrestrial and Celestial Globe of Prince-Abbey Bernhard Muller by which Zurich agreed to create a duplicate at its own cost and offer it to St. Gallen.^{Footnote 34}

In a way this agreement is very exceptional,^{Footnote 35} but I tend to think its contents could have been even better. After almost 200 years, it remains quite surprising that the property is left in the hands of the looters with an actual legal title. Today things might seem acceptable because Zurich had to relinquish its possessory right over the manuscripts for 37 years, the period during which the agreement cannot be renegotiated. But what if after that time has lapsed Zurich obtains a cancellation of the loan and a full-fledged restitution of the manuscripts? This basically would mean that through a series of subtle steps Zurich would have managed to secure an undisputable title over property looted during a conflict.

The question therefore is: would an appropriate answer not have been to recognize a form of co-ownership between the two Cantons and to work on a specific agreement relating to the sharing of the objects amongst them?

The Korean Uigwe Manuscripts Case

In 1866 the French army sacked the island of Kanghwa in Korea, where ancient royal manuscripts were kept in archives. Several French priests had been killed and the French army ordered the invasion of this island and the taking of the manuscripts as a punitive measure against Korea. These manuscripts were then completely forgotten until 1975 when a Korean researcher found them in the French national library stacks in Versailles. Thereafter, Korea had been claiming their restitution when eventually a loan agreement was entered into between France and Korea. This was in February 2011. The loan is for a period of five years and is renewable.^{Footnote 36}

Upon receiving the loan the Koreans celebrated the “restitution” of the manuscripts and it is clear that they do not envisage returning them to France. Indeed, several politicians said at the time that this was to be considered as an outright restitution and not as a simple loan.^{Footnote 37} Why not be more realistic and accept a co-ownership of the manuscripts? This would have enabled a restitution of the manuscripts, but a connection with France, where they had been kept for many decades, would also have been preserved.

The Makonde Mask Case

A theft at the national museum of Dar-Es-Salaam led to the disappearance in 1984 of a Makonde mask. Very soon thereafter the Swiss Barbier-Müller Museum acquired this same mask. In 1990 an Italian scholar identified the mask as the one that had been stolen in Tanzania and the Barbier-Muller Museum informed the Tanzanian authorities. Long discussions followed, as the museum initially intended to return the mask as a loan to Tanzania, which was refused. The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP) was notified of the dispute and eventually,^{Footnote 38} with the help of the International Council of Museums (ICOM), an agreement relating to the donation of the mask by the Barbier-Müller Museum to Tanzania was entered into in 2010.^{Footnote 39}

The overall contents of the agreement are not known, but the main difference between restitution and donation is that the latter implies that there was a valid acquisition by the Swiss museum, which it had always said it wanted to see recognized. On the other hand the state of Tanzania accepted only with difficulty the fact that an object that belonged to Tanzania could be “given” to it.

Here again, such difficulties might have been avoided with a decision to opt for a co-ownership.

The Possession of the Property

This is quite obviously one of the most important questions and might very well be the main bone of contention between the parties. The advantage is that with a co-ownership regime the parties are forced to find a solution, whereas if there is no legal relationship amongst the parties a status quo might probably be the best one could expect.

There are many possible practical solutions. If the property can be divided, on could easily imagine a shared possession, each party receiving the custody of a part of the property. This is in a way what happened with the Teotihuacan frescoes. The division can be 50/50, but any proportion is of course possible.

Another option is a shared possession in time: co-owner A can possess for 6 months (or 3 years) and co-owner B will follow by possessing for the following 6 months (or 3 years).

In very complex cases one could also imagine that the parties agree on sharing the original and a duplicate on a similar time-basis. This is in a sense what Zurich and St. Gallen agreed upon: before receiving the copy made by Zurich, St. Gallen was granted the right to expose the original at the St. Gallen monastery library during a temporary exhibition.^{Footnote 40}

It is interesting to note that some important legal texts could be seen as leaving open the option of an alternative arrangement as to ownership, in particular art. 6 § 3 of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects^{Footnote 41} according to which the parties can agree, instead of an indemnification, to a transfer of ownership to a third party. This shows that the authors of the Convention had in mind that arrangements other than a simple transfer of ownership or indemnification of the good faith possessor could be envisaged.

Loan to Third Parties

While the cultural object is in the possession of one of the co-owners it might appear that a third party (state, museum, etc.) asks for the object to be loaned to it, e.g. for a temporary exhibition. Nothing prevents the parties to agree on this. Seeing the importance of this, the co-owners should agree to the loan and also, possibly, to any immunity from seizure during the loan.^{Footnote 42}

Restoration

What about restoration? If important work is to be performed, the agreement of both co-owners would be necessary. If, on the other hand, one is only speaking of “maintenance,” or if the matter is urgent, I would tend to consider that the person in possession of the object is to handle such matters.^{Footnote 43}

Insurance

In order to avoid any trouble, an agreement by the parties to the co-ownership would need to be entered into at the outset as to the actual and insurance value of the object at stake and the consequences of any damage suffered.

Termination of the Co-Ownership

In most cases (apart from the case where the parties agree to a co-ownership in view of selling the property) a co-ownership will be a long term relationship. Its termination should therefore only be possible under very specific circumstances and with a long notice period.

The Day-to-Day Running of the Co-Ownership

A good idea might be to appoint a particular person or institution for the day-to-day running of the co-ownership. And the parties could also adopt internal regulations relating to the practical issues of the co-ownership (maintenance, etc.).

Applicable Law and Arbitration

The co-ownership agreement would have to select an applicable law and provide for a dispute resolution mechanism. A mediation and arbitration clause would seem a good idea.