The Art Law Review: Cultural Property Disputes

I TURBULENCE IN THE ART WORLD IN 2020

i Controversies in cultural institutions

The year 2020 has been a turbulent one for art and cultural heritage, in large part because of two major global events: the covid-19 pandemic and the Black Lives Matter movement. The pandemic has led to major financial concerns for cultural institutions around the world, leading some museums to close permanently. Most surviving institutions have experienced intermittent periods of closure and a significant loss of revenues and donations. With budget concerns looming overhead, museums now face challenging financial decisions and must evaluate their current programming and acquisitions. In some instances, some institutions have made the difficult decision to deaccession, or sell, works of art from their permanent collections. The Association of Art Museum Directors (AAMD) generally prohibits this practice unless certain requirements are met, such as sales proceeds being used solely for art acquisitions. However, during an economic or global health crisis, particularly one a global scale, it may not be feasible for institutions to abide by these restrictions. The loss of revenue during covid-19 lockdowns made it impossible for museums to maintain their budgets, compensate employees and properly care for the items in their collections. This troubling scenario led the AAMD to temporarily loosen its restrictions, announcing that museums would not be penalised for deaccessioning art 'to pay for expenses associated with the direct care of collections'.2 This measure, which started in April 2020, will be in effect for two years. Notably, the Brooklyn Museum took advantage of the new guidelines and consigned 12 works for sale at Christie's in October 2020, in a high-profile sale.3

In addition to the past year's fiscal challenges for cultural institutions, ethical considerations have also played a prominent role. International debates concerning controversial donors and gifts, the composition of museum boards and the ethics of displaying and collecting art and cultural heritage all took place. Museums faced protests related to the funds obtained from donors with problematic pasts, such as the Sackler family, which has been criticised for its role in the US opioid crisis. As the owners of the Purdue Pharma company, the family has been viewed as being responsible for deceiving the public about the safety of OxyContin, a highly addictive painkiller that has led to thousands of deaths and crippling drug addiction across multiple states. The family's role in manufacturing the drug also led to the growth of vast wealth and donations to high-profile cultural institutions in the United States and abroad. Although the Sackler name has been scrutinised for years now, the fallout from Purdue Pharma's closure4 has led to fervent calls for the removal of 'toxic philanthropy' from cultural institutions. Some museums, such as the Louvre and Tate Modern, have already removed the Sackler name from their walls,5 and other institutions may follow suit.

Another debate in the cultural realm over the lack of diversity in art institutions has been intensified by the Black Lives Matter movement calling for more diverse museum boards. Black trustees at art museums have joined forces to form the Black Trustee Alliance for Art Museums in an effort to recruit more Black directors, collect works by Black artists and to cultivate Black curators.6 Although more diverse than they were five years ago, museum leadership roles and boards are still predominantly white. Employees at museums across the United States have demanded more diversity and representation within the institutions and for these establishments to eradicate racism from within their organisations.7 This lack of diversity is also reflected in museum collections. The aim of initiatives such as the Black Trustee Alliance is for increased diversity on museum boards and the hiring of a more diverse group of curators to lead to a change in acquisition determinations and the allocation of funds. Yet these discussions have an effect beyond the Black community. Advocates have alleged that museums violate ethical practices concerning Native American objects when curators fail to confer with tribal representatives prior to their display. It is also derogatory for museums to refer to indigenous art as 'primitive' or 'tourist art' rather than fine art.8 The controversies surrounding these artefacts are broader than those surrounding visual arts as they also affect performance arts companies and venues.9 The art world can expect ongoing discussions for years to come as institutions continue to diversify their programming and attempt to accurately and respectfully represent diverse cultural backgrounds.

ii The repatriation of artefacts

Although present for decades, the call to return looted artefacts has intensified during the past year. The debate encompasses difficult discussions about artefacts taken during periods of armed conflict or colonialism, or those removed in contravention of national or international laws. Amid criticism about the development of museum collections as a result of violence and colonialism, a number of institutions have returned artefacts to origin nations (the places from which the objects were removed). For example, the Netherlands recently announced it would repatriate thousands of items from its museums to the former colonies from where they were forcibly taken. In January 2020, the Netherlands returned 1,500 historical artefacts to Indonesia.10 According to Hilmar Farid, the Director General of the Ministry of Education and Culture of Indonesia, 'This is the first time in the history of Indonesia that Indonesian cultural objects or artefacts that were taken [to the Netherlands] are returned . . . Hopefully this paves the way for the return of objects in other European museums.'11 The Dutch nation also committed to the return of objects to another former colony, Sri Lanka. However, repatriation is complicated due to a lack of information about the rightful owners of the repatriated goods. The Netherlands is struggling with whether to return the objects to the nation of Sri Lanka or to the descendants of the original owners. This is made more challenging given the scant historical record supporting facts around the objects' prior ownership and the exact circumstances of their removal.12

Conversations about repatriations are occurring all over the world in light of the global Black Lives Matter movement, protests over controversial monuments and the recognition that some museums are comprised of colonial takings. While some institutions may have noble intentions of returning controversial objects, it is sometimes difficult to identify the rightful owners. For instance, borders and governmental entities have changed during the decades or centuries that have passed since the objects were transferred from their original location. One prominent group of works in the restitution debate that has attracted attention during the past few decades is the Benin Bronzes.13

The Benin Bronzes are perhaps the best known works of art from West Africa. A group of over a thousand masterful creations by the Edo people, the works were fashioned between the thirteenth and eighteenth centuries. They decorated the royal palace of the Kingdom of Benin (today part of modern-day Nigeria). However, most of the works were looted in 1897 by British forces during a punitive expedition14 that took place during the 'Scramble for Africa'.15 As a result, 200 of the Benin Bronzes were transferred to the British Museum while the rest were purchased by cultural institutions and private buyers in Europe and the United States. According to Dan Hicks, curator of the Pitt Rivers Museum at the University of Oxford, approximately 160 museums around the world currently possess objects forcibly taken from Benin.

Since gaining independence in 1960, Nigeria has continued to demand the repatriation of the Benin Bronzes.16 The nation's fight for repatriation has gained widespread attention during the past few decades as museums have returned other culturally significant artefacts to origin nations. Nigerian officials believe repatriations are imminent as international protests raise awareness of historical cultural thefts from Africa and their negative impact on African communities that have no access to artistic or historical depictions of their heritage.17 The nation is readying a new museum to display the valuable objects once they are repatriated, signalling its commitment to providing local communities with access to these unique pieces.

Other UK museums have also been called to task to return looted artefacts to Africa18 and other nations.19 Some critics have also used this opportunity to demand the repatriation of the Parthenon Marbles, violently removed from the Parthenon over two centuries ago and displayed at the British Museum ever since.20 The trend in France is the same, as the nation has also been at the forefront of discussions about looting from African countries.21 The Sarr-Savoy report, published in 2018, was a major step in this direction. Similarly, US institutions are restituting looted or questionably acquired items. In one case, the University of Pennsylvania's Penn Museum has removed a collection of human skulls from view and has vowed to repatriate or rebury the skulls.22

II PRIVATE CULTURAL HERITAGE DISPUTES

i Nazi-looted art

The theft and destruction of art committed by the Nazi Party is unparalleled in modern history, and thus legal systems around the world are still grappling with ways to return property to rightful owners and compensate those who suffered losses. One of 2020's most watched art disputes involves a rare and valuable collection of religious works that was purportedly sold under duress during the Nazi era. Although the sale occurred in the 1930s, prior to Nazi control of Germany, the heirs filed suit against the Republic of Germany in the United States to recover the items. The US Supreme Court agreed to hear Philipp v. Federal Republic of Germany,23 a case that will have far-reaching consequences for Holocaust-looted art claims. The litigation concerns the Guelph Treasure, one of the most important collections of medieval German ecclesiastical art. It was named after the House of Guelph, which had owned the works since 1671. The princely house sold the collection, then comprised of 82 objects, to a consortium of four Jewish art dealers, for 7.5 million Reichsmarks in 1929. During the following years, a number of items from the collection were sold to private collectors and museums.

In 1935, the remaining 42 pieces of the collection were sold for 4.25 million Reichsmarks to agents of Hermann Göring.24 Göring then presented the Guelph Treasure as a gift to Hitler and it was displayed in the Bode Museum in Berlin, where it remains to this day. The largest German ecclesiastical collection owned by a public institution, the Treasure belongs to the Prussian Cultural Heritage Foundation (SPK). However, heirs of the consortium's members have brought their claims before courts in the United States, alleging that the sale to Göring was made under duress.

In 2008, heirs of the consortium contacted the SPK seeking the restitution of the Treasure. The SPK's internal investigation determined that the collection had been acquired legally. In 2014, the parties brought their dispute before the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution (the Commission), an arbitration commission specialising in Nazi-looted art determinations. The Commission rejected the restitution claim based on the economic situation at the time of the sale; namely, the imminent Great Depression. During the arbitration, the heirs asserted that Jews were aware of their vulnerability under Nazi rule at the time, which led the consortium to sell the works. The SPK asserted that the Prussian state paid a fair market price for the works and so the consortium was compensated fairly. However, sales by Jewish German vendors occurring after 1933 are generally presumed invalid due to coercion, as the Nazis were already politically active during this period.

Finally, in 2015, three heirs of the consortium filed suit in the United States against Germany and the SPK, alleging that the Treasure had been sold under duress for one-third of its actual value and contending that the Prussian state discouraged other potential buyers from purchasing the works. Generally, foreign sovereigns are immune from suit in the United Sates under the Foreign Sovereign Immunities Act (FSIA). However, parties can overcome the presumption of immunity by proving that one of the FSIA's enumerated exceptions applies. Here, the heirs asserted that two exceptions applied: the commercial activity exception and the expropriation exception. The commercial activity exception dictates that sovereigns are not immune for engaging in activities in the United States that are commercial in nature.25 The expropriation exception grants US courts jurisdiction over a foreign state when a dispute involves the taking of property in violation of international law, which has a commercial nexus with the United States.26

In March 2016, Germany filed a motion to dismiss under the FSIA, the international law principle of comity, forum non conveniens, and the expiry of the statute of limitations. Following the passage of the HEAR Act27 and its six-year limitation period in the United States, Germany abandoned its statute of limitations argument, but the nation argued it was shielded from suit by the FSIA because the expropriation exception did not apply, claiming that it has a limited application to cases involving the seizure of property belonging to foreign nationals. Here, the Guelph Treasure was taken from German nationals, not foreign citizens. The nation also argued that US jurisdiction was inappropriate under the principle of comity; a party suing a foreign sovereign cannot seek redress in the United States until it has exhausted all legal remedies in Germany. Germany further argued that the United States was not the proper forum, and also alluded to the affirmative defence of laches (the unreasonable delay in making a claim that resulted in prejudice may lead a court to dismiss a case), because the collection has been displayed openly in Germany since 1963.

In 2017, the United States District Court for the District of Columbia (the DC Circuit) denied in part and granted in part Germany's motion. The Court ruled that seizures from a country's nationals are a violation of international law when the seizures are part of a policy of 'genocide'. The Court reasoned that the sale bore a 'sufficient connection to genocide such that the alleged coerced sale may amount to a taking in violation of international law'.28 The District Court also found support for the plaintiffs' allegation that the Commission's decision was politically motivated, concluding that foreign policy supported the just and fair resolution of claims for Nazi-confiscated art and that no binding precedent from the DC Circuit required the claims to be 'exhausted' in Germany. Finally, the Court found that the balance of interests weighed in favour of the plaintiffs' choice of forum, particularly because three of the heirs are US citizens.

Germany filed an interlocutory appeal, arguing that the lower court incorrectly found that it had jurisdiction over the case. Germany restated the arguments that the lower court had rejected, including that allowing the claims to be heard would conflict with the US government's stated policies regarding Holocaust restitution. In July 2018, the DC Circuit affirmed in part, ruling that the claims against Germany and the SPK fell within the expropriation exception. However, the Court noted that the exception requires a 'commercial nexus' between the sovereign and the United States When the defendant is a foreign state, the commercial requirement is only satisfied if the property at issue 'is present in the United States'. Since the Guelph Treasure is in Germany, the Court was required to dismiss Germany from the lawsuit.

The DC Circuit rejected Germany's and the SPK's petition for a rehearing en banc, but the US Supreme Court granted Germany and the SPK's writ of certiorari. Oral arguments were held on 7 December 2020, and they addressed two questions: (1) whether suits concerning property taken as part of the Holocaust are within the expropriation exception, and (2) whether a foreign state may assert a comity defence. The US Supreme Court will make its jurisdictional determination in 2021. This case demonstrates the complexities surrounding Holocaust-looted art claims, not least of which are the non-legal and moral considerations in addition to legal arguments.

ii International antiquities disputes

In a very different type of cultural heritage dispute involving the FSIA, a foreign government was sued for contacting an auction house about an object with questionable provenance consigned for sale.29 In Barnet et al. v. Ministry of Culture and Sports of the Hellenic Republic,30 the dispute arose from Sotheby's planned auction of a Corinthian bronze horse. A few days prior to the sale, Greece sent Sotheby's a letter challenging the consignors' ownership, citing Greece's patrimony law and alleging that the bronze had been illegally removed.31 Sotheby's then withdrew the antiquity. A few weeks later, Sotheby's and its consignors (the Barnets) filed a complaint in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the Barnets were the lawful owners of the bronze and that Sotheby's was entitled to sell the item. Greece moved for dismissal under the FSIA, alleging that its actions qualified as sovereign, not commercial, activity. In June 2019, the District Court held that Greece lacked immunity, reasoning that the transmission of the letter to Sotheby's that ultimately halted the sale of the auction lot fell within the FSIA's commercial-activity exception. Greece appealed the decision in the Second Circuit.

In June 2020, the United States Court of Appeals for the Second Circuit reversed the District Court's decision.32 It held that a foreign state's immunity is not lost under the FSIA when the foreign sovereign makes a communication about its ownership under a patrimony law because the enforcement of that law is inherently sovereign, not commercial, activity. A private party cannot assert ownership of an antiquity under a national patrimony law. The Court found that Greece's act of sending the letter was not in connection with a commercial activity outside the United States; thus, the direct-effect clause of the commercial-activity exception was not satisfied, and the District Court erred in concluding it had jurisdiction.

This litigation is a landmark case because it was the first time a foreign sovereign was sued for protecting its heritage via a patrimony law. Other foreign nations feared that the District Court's problematic ruling would prevent them from communicating with sellers and institutions in the United States regarding property protected under their national patrimony laws. However, the Second Circuit's unanimous decision supports foreign governments' role in the art market regarding issues of patrimony and protects them from suits in which they seek to protect property and claim ownership under patrimony laws. This is particularly significant in the context of antiquities, which are often looted from source countries before being sold in market countries to cultural institutions and private collectors.

Another case involving national ownership of antiquities is Republic of Turkey v. Christie's Inc.33 The 28 April 2017 Exceptional Sale at Christie's featured the Guennol Stargazer, a 22.9cm tall Anatolian marble female idol of Kiliya type, carved during the third millennium BC. There are only 15 such figures in existence, but this one was particularly appealing because it was once part of the magnificent Guennol Collection, begun in 1947 by Alastair Bradley Martin and his wife Edith.34 Expected to sell for US$3 million, the artefact was bought by an anonymous bidder for US$14.4 million.

As in the Barnet matter, the Turkish government informed the selling auction house that the government disputed the title to the object and had a valid ownership claim under its national laws. Nine days before the sale, the Consul General of Turkey informed Christie's that the idol originated from Turkey and was therefore considered 'state property'. The following day, Christie's challenged those assertions and declined to halt the sale. Representatives for the parties met to resolve the dispute, but were unsuccessful.

The day before the auction, the Turkish government filed an ownership claim in federal court and asked the court to stop the sale. The nation stated that the antiquity 'is an extremely rare artefact that is an integral and invaluable part of the artistic and cultural patrimony of the Republic of Turkey'. Further, it asserted that it was 'illicitly removed' from the country in contravention of a Turkish patrimony law passed in 1906 because it was looted in the 1960s, not discovered during a government-approved excavation and not reported to authorities. Christie's countered that Turkey did not provide factual evidence for its claims that the artefact was looted and that the 1906 patrimony law was irrelevant to the sale. Moreover, the auction house argued that Turkey inexcusably delayed its demand for the return of the antiquity because it was openly displayed at the Metropolitan Museum of Art (the Met) and also appeared in several publications. Christie's asserted that Turkey should have known about the artefact's location years before.

The court rejected Turkey's request for a temporary restraining order to halt the sale, finding that any irreparable harm35 to Turkey was 'substantially diminished' due to Christie's offer to delay receipt of funds and hold the work for 60 days following the auction to provide Turkey with an opportunity to provide evidence supporting its claim the piece was looted. However, the parties disputed whether the 1906 patrimony law was legally in effect at the time the artefact was removed. Turkey asserts that the law has been in effect since 1906. Christie's argued that the Republic of Turkey was not even in existence in 1906, but was rather established in 1923, and did not adopt the 1906 law or enact similar patrimony laws until the 1980s.

The court also raised concerns about the delay in demanding the return of the piece, questioning why a restitution claim was not filed while the artefact was at the Met. Christie's and the consignor, Michael Steinhardt, jointly filed a motion to dismiss, arguing that Turkey's claim was not timely under laches because the nation unreasonably delayed in filing the case. Turkey countered that the lawsuit was not time-barred because the statute of limitations does not begin to run until a claimant is aware of an object's location and knows it has an ownership interest. Turkey was unaware of its interest until the auction catalogue revealed that the artefact lacked provenance prior to the 1960s. Interestingly, in a rare move, the court ordered Christie's to reveal the identity of the anonymous winning bidder.

The answer filed by Christie's and Steinhardt's answer contained counterclaims against Turkey asserting the following: (1) that the consignor be declared the rightful owner; (2) that Turkey committed tortious interference with contract; or, in the alternative, Turkey committed tortious interference with prospective economic advantage. Both parties filed summary judgment motions. In September 2019, the district court denied Christie's and Steinhardt's motion for summary judgment and granted Turkey's motion for summary judgment on the tortious interference counterclaims.

The case is ongoing. Trial was initially scheduled for April 2020 but has been delayed due to the pandemic. The bench trial is now scheduled for April 2021. Like Barnet, this decision will have a tangible impact on antiquities litigation and foreign sovereigns' patrimony claims under their national laws in the United States.

iii Forfeiture claims

Cultural heritage disputes in 2020 also arose in the context of government seizures, including a number of high-profile matters. On 15 September 2020, the US government initiated a seizure against Erdal Dere and Faisal Khan.36 Dere owns and operates Fortuna Fine Arts, Ltd and Khan is his long-time associate and co-conspirator. The defendants were indicted for an audacious years-long conspiracy to defraud buyers and brokers in the antiquities market with the use of false provenance documentation. Dere was charged with aggravated identity theft after misappropriating the identities of deceased collectors and using their names to fraudulently establish fabricated provenance for looted antiquities. Khan then assisted Dere in procuring buyers in the United States and abroad. The scheme was far-reaching, and included an unnamed New York auction house.

Yet this was not the defendants' first problem with the law. Fortuna Fine Arts, Ltd had come under scrutiny on multiple prior occasions.37 In 1993, the FBI confiscated items smuggled from Aphrodisias in Turkey by the company, and in 2018, the Manhattan District Attorney issued a seizure warrant for an Etruscan terracotta vessel due to concerns that it was illegally exported. In fact, Dere's father had purportedly been arrested and released by Turkish police for his connection to a smuggling ring before moving to the United States decades ago. He was implicated in the smuggling of a marble sarcophagus depicting the 'twelve labours of Hercules'. The sarcophagus was intentionally and irreversibly damaged to smuggle it more easily; the smugglers sliced the large object into pieces. A part of the sarcophagus made its way to the Getty Museum, which repatriated it to Turkey in 1983. The United States government now demands that Dere and Khan forfeit the objects in their possession, in addition to the funds earned from the sale of antiquities that were accompanied with fabricated provenances.

Another dramatic seizure involved the illicit transportation of Egyptian artefacts into the United States. Ashraf Omar Eldarir was indicted on two counts of smuggling after he imported looted Egyptian antiquities into the United States.38 One count concerns approximately 590 artefacts, while the second involves a polychrome relief. The large cache was seized at New York's JFK Airport in January 2020 after Eldarir, a US citizen, arrived from abroad with three suitcases filled with undeclared Egyptian antiquities. Among the items were gold amulets from a funerary set; a relief with the cartouche of a Ptolemaic king that was originally part of a royal building or temple; wooden tomb model figures with linen garments dating to approximately 1900 BCE; and two complete Roman period funerary stelae of the type found at Kom abu Bellou in Egypt.39 Eldarir falsely declared that he was carrying goods valued at US$300. In addition, he did not have legal documentation authorising the export of the artefacts from Egypt. The pieces had been recently removed from a dig site, as indicated by the presence of loose sand and dirt that fell out of the suitcases after officials opened them. Some of the items also smelled of wet earth, which was a further indicator that they had been recently excavated. If convicted, Eldarir faces a prison sentence of up to 20 years for each count. The indictment followed an investigation by US Immigration and Customs Enforcement and US Customs and Border Protection. Eastern District of New York US attorney Richard P Donohue stated: 'These cultural treasures traveled across centuries and millennia, only to end up unceremoniously stuffed in a dirt-caked suitcase at JFK.'40

But perhaps the most interesting government seizure in 2020 involves the storied 'Gilgamesh Dream Tablet', a looted cuneiform tablet exhibited in the Museum of the Bible and acquired by Hobby Lobby in 2014.41 However, this was not Hobby Lobby's first problematic acquisition. From 2009, representatives of Hobby Lobby had purchased thousands of Biblical-era artefacts from Iraq that were intended for the future Museum of the Bible. However, the artefacts were actually looted and then shipped to Hobby Lobby with false provenance information. The information falsely claimed the items came from Israel or Turkey to avoid mention of Iraq as the true country of origin, due to public knowledge about extensive looting from that nation. In 2017, in response to a civil forfeiture action filed by the Eastern District of New York,42 Hobby Lobby agreed to forfeit US$3 million to the US government and return over 5,500 artefacts to Iraq.

On 18 May 2020, the Museum of the Bible faced yet another front-page antiquities controversy when the United States filed an in rem proceeding against the Gilgamesh Dream Tablet. The small tablet was one of a dozen found in 1853 in modern-day Iraq and depicts what is believed to be the oldest work of literature, the epic of Gilgamesh. The tablet at issue was allegedly illegally imported into the United States. Artefacts found within Iraq's borders are subject to patrimony laws. These laws vest ownership of objects found within its borders to the Iraqi state, and prohibit their export. In addition to those laws, the US has placed import restrictions on Iraqi cultural property since 1990, and then again through the 2010 Iraq Stabilization and Insurgency Sanctions Regulations.43 As such, the Gilgamesh Dream Tablet is considered stolen property under US law.

According to the government, the Tablet's provenance was falsified to show that the work had been discovered decades ago and had been inside a box purchased at a California auction in 1981. In truth, it had been purchased by a US dealer in London in 2003 and then brought to the United States. At the time, Iraq was experiencing widespread looting after the US invasion earlier that year. In 2013, the prior possessor of the Tablet (a dealer) contacted Christie's to consign the cuneiform piece for a private sale. The auction house contacted the dealer to confirm the provenance. Unusually, the dealer warned the auction house that the provenance would not withstand scrutiny and suggested that Christie's not use it in connection with a public sale. In response, Christie's offered the Tablet to Hobby Lobby via private sale. Hobby Lobby expressed concerns about the provenance but Christie's failed to provide the false provenance letter or the identity of the antiquities dealer after inquiries were made. Ultimately, Hobby Lobby purchased the Tablet for US$1.6 million from Christie's.

The day after the United States filed its civil forfeiture action, Hobby Lobby sued Christie's for breach of contract and fraud, seeking compensation and alleging that the auction house misrepresented the item's provenance. The case is ongoing and will doubtless prove interesting to the art community at large.

III Conclusion

A number of legal controversies in 2020 faced delays due to the coronavirus pandemic. As government offices, court houses, arts institutions, businesses and law firms reopen in 2021, the art market will be eagerly awaiting the outcomes of these matters.


Footnotes

1 Leila A Amineddoleh is the founder of Amineddoleh & Associates LLC.

4 The company faces three criminal charges and has agreed to pay US$8 billion in penalties; www.cnn.com/2020/10/21/business/purdue-pharma-guilty-plea/index.html.

8 id.

11 id.

13 The name is a misnomer as the pieces are mostly made of brass, while some are made of a mixture of other materials, including bronze, wood and ceramic.

14 The expedition was in retaliation for the massacre of British officials who entered Benin City, against warning, during a ritual.

15 The period between 1885 and 1914 when European colonisers partitioned the largely unexplored continent of Africa into protectorates, colonies and 'free-trade areas'.

23 Philipp v. Federal Republic of Germany, 925 F.3d 1349 (D.C. Cir. 2019) (petition of cert. granted 2 July 2020).

24 Göring, one of the most powerful figures in the Nazi Party, was an art collector who acquired portions of his collection by pressuring owners to sell their property.

25 Determining whether something is commercial 'in nature' requires that the court ask whether the activity could have been done by a private party, not a sovereign nation. Rep. of Argentina v. Weltover, Inc., 504 U.S. 607 (1992).

26 28 U.S.C. § 1605(a)(3).

27 Holocaust Expropriated Art Recovery Act of 2016, Pub.L. 114–308.

28 Philipp v. Federal Republic of Germany, 248 F.Supp.3d 59, 71 (D.D.C. 2017).

29 By way of a disclaimer, the author of this chapter represented the Hellenic Republic in the litigation.

30 Barnet et al. v. Ministry of Culture and Sports of the Hellenic Republic, 391 F.3d 291 (S.D.N.Y. 2019).

31 Patrimony laws generally vest nations with ownership of antiquities discovered within their borders; if artefacts are discovered by illicit excavations or not properly reported to authorities, the objects become stolen property and are vulnerable to seizure or repatriation claims.

32 961 F.3d 193 (2d Cir. 2020).

33 Republic of Turkey v. Christie's Inc., 425 F.Supp.3d 204 (S.D.N.Y. 2019).

34 In December 2007, Sotheby's sold a Mesopotamian limestone carving from the collection; it went for US$57.1 million, setting a still-unbroken auction record for an antiquity.

35 A legal standard for such requests.

36 U.S. v. Dere and Khan, No. 1:20-cr-00501 (S.D.N.Y. 15 September 2020).

38 U.S. v. Ashraf Omar Eldarir, No. 1:20-cr-00243 (E.D.N.Y. 2 July 2020).

40 id.

41 The Museum of the Bible was founded by Steve Green, the president of Hobby Lobby, in 2017.

42 United States of America v. Approximately Four Hundred Fifty (450) Ancient Cuneiform Tablets; and Approximately Three Thousand (3,000) Ancient-Clay Bullae. The author of this chapter consulted with the Eastern District of New York on this matter.

43 31 C.F.R. Part 576.

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