Freda Matassa, Director, Matassa Toffolo Ltd., Art Collections Management, UK
For anyone not yet familiar with the oft-heard term due diligence, Freda Matassa provided the reassurance that as part and parcel of being a registrar, this was something you would be doing every day, following professional practices and rules. It is a term widely used in the banking and commercial world, but is equally applicable to the role of the registrar. The whole point of due diligence is that if something goes wrong you have documented evidence that you can go back to that demonstrates that your museum acted appropriately.
Freda set out what due diligence means for a registrar in the context of loans and objects.
The ICOMdefinition of due diligence is that all the required endeavors have been undertaken “to establish the facts of a case before deciding a course of action, particularly in identifying the source and history of an item offered for acquisition or use before acquiring it.” This therefore applies not only to acquisitions but to exhibitions, loans out, old loans and to deaccessions. Obtaining provenance information is required when a museum is borrowing items from abroad and it is intended to use GIS and Immunity from Seizure, and equally when lending items to other institutions provenance details will be supplied. For old loans, a museum should have a policy to research these to obtain more provenance information. For the deaccessioning processes a museum must carry out due diligence to ensure that it is clear on what the conditions were for the acquisition of the item. In the museum context, if something goes wrong, we can fall back on the fact that the proper processes were followed. The key requirements are that we seek to know the history of an object and are seen to be acting in an ethical and transparent way. This is not always easy but a museum has a duty to try and find out, and if unable to obtain full information, that the museum acts honestly and transparently and publishes details of items with doubtful provenance on its website.
Freda ran through the key laws and conventions that registrars need to be aware of, one of the most critical being UNESCO 1970 whereby after 1970 archaeology and ethnography items must have a valid record of export. It is good practice for your museum to indicate compliance with these key laws and conventions on your website. They include:
- UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property;
· UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage
· UNIDROIT 1995 Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)
· CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora
· UK Dealing in Cultural Objects (Offences) Act 2003
· UK Treasure Act 1996
- ICOM Code of Ethics
- ICOM red list
- MA Codes of Ethics for Museums
- Washington Principles 1998
- Terezin Declaration 2009
- Combating Illicit Trade: Due Diligence Guidelines for Museums, Libraries and Archives on collecting and borrowing Cultural Material (DCMS, October 2005)
- Statement of Principles issued by the National Museum Directors Conference on “spoliation of works of art during the Holocaust and World War II period” in 1998
For international loan agreements a museum needs to provide a statement that it is an ethical organisation, provide assurances that the loan will be returned, that proof of provenance will be required from the lender, and indicate that it has a procedure to deal with any third party claims.
Freda went on to consider Immunity from Seizure, defining it as a legal guarantee that an item borrowed from another state will be returned. There were a number of reasons why an object might be seized:
· non-payment of debt (as happened in the Noga case where Noga had a claim against the Russian government)
· A descendant of a family whose private property had been Nationalised
· Families/countries wishing to recover property looted during the war
· Illegal excavation or export
· Restitution of national cultural heritage – eg ethnography items
Countries with IFS include the US, France, Austria, Belgium, Czech Republic, Finland, Germany, Lichtenstein, Switzerland, the UK and most recently Russia. However it was important to be aware that these do not necessarily provide the same coverage. Some cover state property only, some have automatic cover, some an application process and some a mixture of the two.
Freda highlighted the conditions of the UK IFS and these can be found at: http://www.legislation.gov.uk/ukpga/2007/15/part/6
Freda considered the roles and responsibilities of a museum with approved status to offer IFS. Responsibility starts at the top and needs to be embedded throughout the institution. It has to be owned at Director-level, with curators responsible for researching works and registrars responsible for understanding the law and what IFS covers , being aware that some conventions/laws could override IFS, knowing when IFS is appropriate, controlling deadlines for carrying out due diligence and keeping records of investigations. Training throughout the organisation is important and any contracts with freelance curators should clearly state who is responsible for due diligence. The museum must have an ethical loans policy, making it clear that there is a process for undertaking due diligence for acquisitions and loans and that it will publish responses to claims.
Many lenders will automatically request IFS but it is sometimes not necessary and it is important for the registrar to consider whether the item is high risk or not. Freda gave a useful analysis of what represented high and low risk categories. High risk would include gaps in provenance during the 1933-45 period, archaeological objects found or exported after 1970, ICOM red list, items of ethnography and state-nationalized property. Low risk would include objects that have always been in the same country, objects acquired directly from an archaeological site, newly-created objects and commissions, non-unique/low value objects. Freda gave a brief overview of the type of information you needed for research, the research process and the materials that you need. Sources of information included the museum acquisition record, an export license from the country of origin, publication in a reputable source prior to 1970, will/inventory, photographic evidence, family correspondence, auction catalogue entry and receipt of purchase. She made it clear that there is a point at which it is not reasonable to go any further. It is what is reasonable for the situation. Freda also gave advice on how to deal with claims. Have a policy, keep records, be open, report it and publish it. Tell lender their identity may need to be revealed.
Freda finished with a quick round up of some legal cases concerning due diligence and Immunity from seizure:
Bloch Bauer Heirs v. the State of Austria (2004)
Government of Iran v. Barakat Galleries (2013
Moravian Gallery v. National Gallery of Czech Republic and Diag Human (2014)
Kurtha v. Marks (2008)
Project Work Stream Leader: Art Collections Management