Are Alternative Dispute Resolution ('ADR') Mechanisms The Way To Resolve Cultural Property Disputes?

• Published date: 23 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Withers LLP
• Author: Ms Eleni Polycarpou, Camilla Gambarini, Tessa Schrempf and Giulia Trojano

Since Cambridge's Jesus College returned a Benin Bronze in October 2021, many museums in the global north have followed suit this year. The Horniman Museum in the UK agreed to repatriate 72 bronzes, the Smithsonian National Museum of African Art in the USA transferred ownership of 29 bronzes and Germany signed a restitution agreement with Nigeria covering some 1,100 works. While the Benin Bronzes saga seems to illustrate a current success story for museums and States alike, an abundance of cultural property remains scattered around the globe.

In this Insight, we explore how ADR mechanisms may help to solve cultural property disputes.

What are the characteristics of cultural property disputes?

Sensitive cultural and political considerations are at the core of these disputes. On the one hand, museums have an educational interest in displaying artefacts. On the other hand, States and/or indigenous communities may consider such artefacts to be part of their cultural heritage. The legal ownership of these pieces is not always clear-cut and their provenance difficult to trace. Hard-fought cultural property disputes often require careful balancing of competing claims.

How are cultural property disputes traditionally solved?

Art disputes, including the return of cultural property, are traditionally resolved through recourse to local courts. In Iran v The Barakat Galleries,¹Iran brought a claim against Barakat, an art gallery, demanding the delivery up of a number of carved jars, bowls and cups which it claimed had been illegally excavated from a historical Iranian region. Barakat disputed Iran's claim to ownership of the collection and the antiquities' alleged provenance. Barakat also contended that it had acquired good title to the antiquities when it purchased them. The English High Court found that Iran had no proprietary claims to the antiquities. This decision was overturned on appeal. Finding in favour of Iran, the Court of Appeal decided that English courts could assist in the matter through the recognition of Iranian ownership laws, thus determining that Iran had the right to recovery of the artefacts.

In other cases, interested parties may resort to extensive and complex negotiations to obtain the repatriation of cultural property. For example, the Euphonious Krater, an ancient terra cotta calyx crater of VI century BC, had been stolen from an Etruscan cemetery in Cerveteri (Italy) and became part of the collection of the Metropolitan Museum of Art in...