An alternative lens through which museum trustees may evaluate the merits of a moral claim for restitution is whether an artefact [‘A’] belongs in a particular place or setting e.g. tribal lands occupied by an indigenous source people/community. In other words, does A have a ‘Cultural Home/Homeland.’

This is a matter of moral philosophy and there may be historical precedents which date as far back as antiquity to validate the concept because of art restitution practice in the ancient world. This will of course need to be researched.

The concept of a Cultural Home for an artefact [‘H’] is linked to the concepts of:
·       a ‘Lex Originis’;
·       the ‘legitimacy’ of a place where A should be located (‘Patrie’ – i.e. the
cultural ‘homeland’ of A);
·       the applicable law being that of H – and what state law applies in
default if the law of H is not a unified, i.e. recognised body
of law in jurisprudence;
·       the sovereignty of indigenous peoples and their human rights; and
·       the concept of the creation for public display, i.e. in a museum/gallery, of a ‘unity of art.’

The concept of a ‘unity of art’ is a double-edged sword.

On the one hand the idea is an argument in support of repatriation for display in that A will be displayed along with other cultural artefacts, thereby enhancing the collection(s) by adding to knowledge about the source community/civilization. On the other hand, the museum from which return is sought could argue that the unity of its own collection(s) by be diminished by returning it, and so it is under a duty to mankind as a whole to retain it for research and display in a place where it can be accessed. So, how does a museum trustee square the circle?

Logically, these arguments may be measured through an ethical equilibrium of beneficence, i.e. by evaluating harm in retaining A v. benefit in returning A. Of course, and particularly where the margin between relative benefit v. relative harm is small, they may cancel each other out, in which case the merits of retention v. return are likely to be perceived as being almost equal. In which case, museum trustees are likely to favour maintaining the status quo, because that is likely to be less controversial with their own stakeholders, than returning A to the people from whom A was misappropriated.

However consideration of ethical arguments is only dimension of lawful decision-making by museum trustees, which in the case of state actors/entities is also linked to jus cogens and erga omnes norms under international law.

This is an area of decision-making by museum trustees that appears to have been almost entirely neglected in the academic literature on trustee decision-making by public bodies, and is an area I will research in relation to my next book – ‘Art Restitution Claims – A Practical Handbook for Claimants & Museums.’

Data Protection Act 2018, Schedule 2, Part 4, paragraph 19 provides:

‘The listed GDPR provisions do not apply to personal data that consists of—

(a) information in respect of which a claim to legal professional privilege or, in Scotland, confidentiality of communications, could be maintained in legal proceedings, or

(b) information in respect of which a duty of confidentiality is owed by a professional legal adviser to a client of the adviser.’

Privilege is a right to resist the compulsory disclosure of information, and in particular documents which:

(i) contain legal advice; or
(ii) were created for the dominant purpose of obtaining information or advice, in connection with actual or contemplated litigation.
(Shlosberg v. Avonwick Ltd [2017]).

Under English law, whether or not a communication is privileged is a procedural question and thus governed by the law of the forum (see further Dicey, Morris and Collins, paragraph 7-022).

The primary forms of legal professional privilege are:

(i)    ‘legal advice privilege’, which attaches to certain communications between a lawyer and a client; and

(ii)    ‘litigation privilege’, which attaches to certain communications between a lawyer or client on the one hand and a third party on the other.

A lawyer, in-house or external, must be acting in their professional capacity before privilege will attach to any legal advice delivered.

The content of the communication must be ‘legal advice’.

For ‘legal advice’ which is not about litigation, the communication will only be privileged if made between lawyer and client.

Where ‘legal advice’ is sought or delivered through an agent, i.e. as a conduit, what may look like a communication between a lawyer and a third party which would not attract legal advice privilege, may in fact be a communication between a lawyer and an agent of the client.

Privileged material may be shared without loss of privilege.

However, once confidence in a communication is lost, privilege falls away because confidence is an essential ingredient of privilege.

Common interest privilege allows a client (‘A’) to share information with a third party (‘B’).

If B has a common interest in the subject matter of the communication then B can also claim privilege in it. (See further, ‘Fiduciaries and legal professional privilege’ by Gareth Tilley, Barrister, Serle Court, London, Trusts & Trustees, Vol 24, No.3, April 2018, 243-249).

SRA Guidance states:
‘Paragraph 6.3 of the Code of Conduct for Solicitors, RELs and RFLs and of the Code of Conduct for Firms (referred to collectively as (“the Codes”) requires you to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.
This duty of confidentiality exists as an obligation under both common law and data protection legislation as well as being one of the core professional principles set out in section 1(3)(e) of the Legal Services Act 2007 and professional standards in our Codes.
The Courts have stated that the duty to preserve confidentiality is unqualified, in that it is a duty to keep the information confidential, not merely to take all reasonable steps to do so. It is not limited to the duty not to communicate the information to a third party. …
The duty of confidentiality applies to information about your client’s affairs irrespective of the source of the information. …
Confidentiality will attach to all information given to you, by your client or a third party, in connection with the retainer in which you or your firm are instructed. Should you have information unrelated to the retainer this may not be covered by your duty.’

NB also the Freedom of Information Act 2000 s.36(2)(b) which provides:

‘Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

(b) would, or would be likely to, inhibit—

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation …’

Imagine an ancient sculpture in 3 fragments.

On part is in the British Museum, another inside the Louve & the 3^rd part in a state museum in Athens.

Are the governance bodies of these museums (let’s for convenience call them trustees), under a duty to collaborate in the re-unification of the 3 parts i.e. in order to make the sculpture whole again?

That is a legal & ethical Q. I will research next year with reference to:

• International Cultural Heritage Law &
• the Philosophy of International law.

Now:

• There is international recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities, Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2008](CA).
• A corollary of this proposition is that museum trustees should assist each other to reunite all of the parts of a sculpture in their possession which were unlawfully removed – no matter by whom, where or when.
• A corollary of the proposition that a National Museum owes a duty to preserve art and cultural heritage treasures for the ‘benefit of all mankind, is that such institutions also owe a wider duty to strive to be better ‘collaborative custodians’ of world heritage.

Since aesthetically, the whole of the sculpture ‘is greater than the sum of its parts’ (Aristotle), then as a legal custodian of a part, each museum appears to be under an ethical duty to enter into a repatriation dialogue whereby the parts may be reunited to make the sculpture whole again for the benefit of all mankind.

If the sculpture was not a fixture, then for the benefit of mankind possession must be shared i.e. for public exhibition, in museums around the world.

If the trustees transform legal ownership of each part into joint-custodianship of the whole, then they can share and enjoy possession of the sculpture in its entirety.

This blog highlights 2 issues for museum trustees:

– Are they under an ethical duty to collaborate in order to serve a greater good/higher aesthetic purpose?

– As ‘custodians’ of cultural heritage for all mankind are they also under a fiduciary duty to humanity to collaborate in making an ancient artwork whole again?

Anoher ethical principle which supports the existence of an ethical duty of collaboration is ‘Solidarity.’ The principle recognizes that we all have a shared humanity and an interest in furthering common goals and tolerating differences that respect fundamental human rights. Mutual respect, understanding and cooperation promote solidarity by fostering goodwill and a recognition of our shared humanity. This principle emphasizes the importance of rising above our differences to find common ground, co-operation and consensus. It would be reflected by seeking to find a consensus in relation to competing claims over cultural property that all parties can accept. The principle therefore encourages mediation in repatriation disputes. The ethical sources of the principle include human rights under international law, i.e. international humanitarian law, which is a compoenent of international cultural heritage law.

The following interntional norms also support the existence of such a duty:
– The recitals to the UNESCO Underwater Cultural Heritage Convention 2001 convention:
‘Believing that cooperation among States, international organisations, scientific institutions, professional organisations, archaeologists, divers, other interested parties and the public at large is essential for the protection of underwater cultural heritage.’
–  International Council of Museums Code of Ethics, Art.6.
– Recent normative activities within UNESCO relating to interntional cultural heritage. At its 30th session, the General Conference of UNESCO adopted a resolution in which it invited the Director-General to study “the advisability of regulating internationally through a new standard-setting instrument, the protection of traditional culture and folklore.” … The importance of the principle of international cooperation in safeguarding ICH was emphasised as well as the need for an obligation to be placed on parties to safeguard ICH that is not listed under the convention framework.

Can Med-Arb/Arb-Med-Arb be used as a process to resolve a claim for the repatriation of ancient art & antiquities to their homeland, whereby Museum Trustees (acting on external legal advice/directions or some sort of ‘blessing’ i.e. from a court of equity & thus in good faith & apparently in accordance with their duties & powers), can agree a process ‘ground-rule’ with the claimant –

‘That any applicable ethical principles of repatriation explored, defined &
agreed during the Mediation phase of the process, may be applied during the subsequent Arbitration phase of the process, in order to make a binding determination about what ethically is the right thing is to do.’

In other words, could Med-Arb/Arb-Med-Arb as a process, result in a legally binding decision which takes into account applicable ‘ethical’ principles of art & cultural property repatriation – by agreement?

Whilst I have not researched the question, I am not aware of a single precedent of where this has been done in the Med-Arb/Arb-Med-Arb of a cultural property repatriation dispute.

If you know of one please cite it as a comment.

My next article, which I have started to research is entitled, ‘Duties & Powers of Museum Trustees in Settling Art Restitution Claims.’

My next book is provisionally entitled, ‘Repatriation Dialogue – Negotiating The Ethical Return To Their Homeland Of Ancient Art & Antiquities.’

I will start work on this book on 1st March 2025.

As I observe in my essay ‘Mediating Cultural Property Disputes’ on the ‘Mediating Cultural Property Disputes’ page at www.carlislam.co.uk:

‘At the epicentre of the restitution dialogue is a struggle between two competing theories under International Cultural Heritage Law.
1.   ‘Cultural nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin.
2.   ‘Cultural internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention –  ‘the cultural heritage of all mankind.’
Is this tension capable of reconciliation by the determination of a judge sitting in an International Cultural Heritage Court established by either the UN or BRICS?
Unlike a common law ‘domestic’ judge, such an international judge could:
(i) Apply principles of International Cultural Heritage Law.
(ii) Espouse evolutive interpretations of International Law Treaties.
(iii) Consider factors external to the law such as: history; morality; ‘practical ethics’; and peculiar local customs, i.e. after hearing expert academic opinion and evidence.
(iv) Exercise judicial discretion in order to ignore the letter of Treaty law where it proves to be unjust or immoral, thereby creating a new body of international law jurisprudence, i.e. of ‘equitable’ principles based upon: (a) core tenets of ‘natural law’, and ‘distributive justice’; and (b) a ‘re-imagining’ of the core principles of international law evolved centuries ago by western legal philosophers, in order to satisfy the ‘cultural’ needs of what is now a globalised ‘civilization’/’community’ in a modern, post-colonial, and geo-politically ‘multi-polar’ era?
Could such an international court become an incubator and instrument of ‘creative’ co-operation between states, in contrast to being a blunt and ‘politicised’ tool of binary competition for scarce resources between states in the Global North v. states in the Global South?

‘The current legal regime does not always manage to accommodate the diverse and competing interests struggling with each other in the realm of cultural heritage. In addition, while ADR methods are to be preferred, it is rather unlikely that all cultural heritage controversies can be effectively resolved through these mechanisms. Furthermore, litigation appears inadequate, lengthy and costly. Overall, these problems support the case for the establishment of a permanent international court. One can argue that until there is a supranational body empowered to resolve disputes and penalise uncooperative nations, unethical stakeholders and criminals, persuasion or appeals to cooperation will not prevail if it is not in the interests of the stakeholder concerned.’ (‘The Settlement Of International Cultural Heritage Disputes’, by Alessandro Chechi (2014), Oxford University Press, pp. 204 & 205.)

This is a ‘Negotiation Behaviour’ strategy that I will be discussing in my online talk to members of the SCMA worldwide about ‘Mediation Advocacy in Trust & Estate Disputes’, at 4pm GMT on Thursday 24 October 2024. In summary:

·       The essence of ‘Principle-Centred Dialogue ‘(‘PCD’) lies in remaining open to persuasion by reference to objective facts and principles.
·       Between themselves, the Mediation Advocates can establish a dialogue based upon reason.
·       This can transform ‘competitors’ into ‘colleagues’ who collaborate in trying to establish objective facts.
·       Thereby, confrontation between them is diffused.
·  So, the Mediation Advocacy strategy is to focus on interrogating objective facts.
·  Making each other open to correction and thus to persuasion, is a pillar of PCD.
·       PCD is premised upon the idea that you cannot convince another person to be open to principles and objective facts you suggest, until you have demonstrated that you are open to principles and objective facts they suggest.
·  Thus, PCD is a two way street.

PCD is also linked to another Negotiation Behaviour strategy that I will be discussing – ‘Adopt an unconditionally constructive approach to your opponent, i.e. treat him/her as a partner.’

No – but it could!

The SCM applies to international ‘commercial’ disputes, (Art.1).

Only an international commercial settlement agreement can be enforced under the SCM.

Settlement agreements relating to ‘family’ & ‘inheritance’ are expressly carved out of the scope of the SCM by Art 2(b).

However, this could change if the Labour Government is switched-on to the opportunity to make the UK a mecca of off-shore and cross-border trust mediation.

As my colleague Jacob Meagher wrote in commentary he contributed about the SCM to my article – ‘Mediating Probate and Trust Disputes – Process Challenges and Tools – Part 2, published by Oxford University Press in Trusts & Trustees in September 2023:

‘The author believes that when enacted, the UK position will be updated, such that almost all mediated civil settlement agreements will be directly enforceable (international or otherwise), this is notwithstanding that
Art 1(2)(b) provides that the convention does not apply to settlement agreements ‘Relating to family, inheritance or employment law’. It is recommended that the UK depart from this provision as the benefits from doing so would allow the UK to become a mecca of off-shore and cross-border trust mediation as well as reinforcing our domestic probate, trust, and employment settlements, and doing away with the need to apply for Tomlin orders and thus wasting precious court time.’

Google also – ‘Consultation on the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) – GOV.UK.’

This states:

‘The mediation sector in the UK has grown considerably in the last 15-20 years, with the sector estimated to be worth £17.5bn in 2020, as businesses look for more cost‑effective methods of resolving disputes outside of the traditional routes of court‑based litigation and arbitration. Mediation is an important means of resolving cross‑border disputes, by enabling the disputing parties to reach a suitable and mutually acceptable resolution themselves, without having to go to court, saving valuable time and money. It is a process which the Government considers ought to be integral to the Justice system, and it is estimated that mediation can save businesses around £4.6 billion per year in management time, relationships, productivity and legal fees.’

So, the opportunity for the Labour Government to grow the UK economy by applying the SCM to international trust and estate disputes is enormous. This morning the PM stated that his Government’s priority was ‘wealth creation.’ Mediation in the UK of international trust and estate disputes is a wealth creator. So, will the Labour Government maximise this opportunity or squander it? Do the PM and Chancellor actually know about it, i.e. is it on their ‘wealth creation’ radar, or was what the PM said just rhetoric lacking in vision, granular understanding, and substance?

As I observed, in my recent post – ‘Requirement for Statements of Truth in key pre-action documents’, p.89 of the CJC Review of Pre-Action Protocols Final Report Part 1, August 2023′, states:

‘3.1 3.2 – The parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute. … There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings.’

In his excellent new book, ‘Advanced Mediation Advocacy’ (2024), on pp. 108 & 109, Andrew Goodman comments:

‘… You should advise your client that if the settlement agreement takes effect in law as a contract, it can be impeached and set aside like any other contract, for misrepresentation, mistake, undue influence or duress at the instance of the innocent party, irrespective of the fact it came about through mediation. Neither the party representative, nor the mediator can become a conduit for fraud. … One of the skills of the mediator is to suspend disbelief in the face of the obvious, this in order to create rapport with both sides, offer empathy to each and project neutrality. The bi-partial role of the mediator is designed to prevent obvious wrongdoing, such as allegations of fraudulent misconduct, from undermining the process from the outset. However ethical issues which go directly to the continuing viability of the mediation need to be addressed. There is in such circumstances a line which, if crossed, will force the mediator to end the mediation. He or she cannot simply rely on the presence of party representatives to avoid the consequences of ethical issues.’

Thus, before any statement of fact is alleged, i.e. in a key P.1 pre-action communication, or by MA.1 to M on behalf of P.1, or by P.1 to M (i.e. in the presence of MA.1), which could later result in a challenge being made by P.2 about the validity of a settlement agreement reached in mediation, e.g. on the grounds of misrepresentation, a prudent & dilligent MA should rigorously interrogate & reality-test P’s narrative.

This scrutiny needs to undertaken before any fact is stated in: (i) a key pre-action communication; &/or (ii) mediation.

In other words, a prudent & dilligent MA must accept what P tells him at face value, i.e. without undertaking a rigorous enquiry & independent fact-checking.

Where e.g. P.1/MA.1 have stated ‘X’ in a key pre-action communication & in mediation P.1 instructs MA.1 to assert ‘Y’, then if only X or Y can be true, i.e. because logically X & Y cannot both be true, then MA.1 must inform P.1 that since P.1 has already ‘pinned his colours to the mast’ by asserting X, that for professional, i.e. ‘ethical’ reasons, MA.1 will no longer be able to represent P.1, if P.1 insists that MA.1 assert Y. Axiomatcially, a legal representative should decline to act for P.1 by advancing a case based upon Y, where P.1 (whether legally represented at the time or not), previously advanced a case in a pre-action communication, based upon X. That is because Y is obviously & self-evidently a lie as it contradicts X & cannot logically be reconciled with & distinguished from X.

This weekend I have been writing up my Speaking Notes & Slides for the talk I am presenting online to members of the SCMA on 24 October about ‘Mediation Advocacy in Trust & Estate Disputes’.

The structure of the talk is as follows:

SLIDE 1 –  Understdning P’s objectives & reasons.
SLIDE 2 –  Commercial planning.
SLIDE 3 –  Hidden costs.
SLIDE 4 –  Hidden value & the Interdependence paradigm.
Slide  5 –   Deal-Making Zone (‘DMZ’).
SLIDE 6 –  Offers.
SLIDE 7 –  Negotiation mindset.
SLIDE 8 –  Negotiation strategy.
SLIDE 9 –  Negotiation behaviour.
SLIDE 10 – Conclusion.

To provide you with a flavour of the talk, ‘Slide 2 – Commercial planning’ states:

·       A trust fund/estate is a finite resource.
·       If prudently managed it can grow.
·       If legal costs are incurred which are indemnifiable out of the trust fund/estate it will diminish.
·       Preserving the capital value of the trust fund/estate by doing a deal in Mediation & thereby avoiding the incurrence of unnecessary costs = common ground.
·       ‘Expanding the pie’ by releasing & sharing hidden value through retrospective tax-efficient post-death estate planning also = common ground..
·       MA [i.e. a Mediation Advocate] needs to explain to P [i.e. their lay client]:
(i)     That there is always an unquantifiable element of risk in any trust/estate litigation for all parties involved.
(ii)    ‘Realism’ i.e. the acknowledgment by each side in a dispute, of the existence of litigation risk for both sides, is what eventually opens the door to settlement in Mediation, i.e. by bringing about a ‘paradigm’ shift from ‘confrontation’ to ‘collaboration.’
(iii)    That in order for P to make a commercial decision about whether ‘the candle is worth the flame?’, P needs to think about the dispute resolution process as being a ‘commercial proposition’/ transaction.’
(iv)   Then P can calculate the ‘price of doing a deal’ by developing a ‘settlement range’ which becomes the foundation of opening & closing offers.
(v)    P’s calculation should factor in both hidden costs & potential hidden value.’

I am planning to develop this talk into a 3 hour course that I can teach in 2025, both in person & online. As far as I am aware, this will be the first course of its kind that has been designed for contentious trust/probate practitioners. Many of the Mediation Advocacy principles that I discuss are also of general application & this course may be of wider interest i.e. to commercial mediation practitioners around the world.

The world is potentially a Zoom Mediator’s oyster!

However, there are elephant sized traps for the unwary Mediator who is not aware of how culture & language can impact what is being said, i.e. what a participant [‘P’] means. That is because their values are not the same as yours, so it is a mistake to correlate their behaviour with what people mean when they behave in the same way/use the same words in your own culture. What P means may in fact be the opposite of what you hear him/her saying. So, you will miss vital cues, clues & signals, unless as a Mediator you are ‘culturally aware.’

Broadly speaking, there are 3 prototypes of culture in the world today + complex ‘hybrids’:

(i) ‘Dignity cultures’ – Australia, Canada, Northern Europe & USA (i.e. ‘Global North’).
(ii) ‘Face cultures’ – China, S.E. Asia & Japan.
(iii) Honour cultures’ – MENA, Latin America & parts of Southern Europe.

‘Global South’ – which includes India, Iran, Russia, & South Africa are complex & hybrid cultures.

In preparing for an international Mediation, a Mediator needs 1st to understand the ‘cultural environment’ in which the Mediation is going to take place.

The entry point for a student/practitioner to increase their awareness of ‘cultural proclivity’, is ‘anthropology’.

Of course, to really understand a culture, you have to live amongst and work with those whose culture it is.

To a small extent, I did this as a young man when I worked in-country in SE Asia, including China, India, South Korea & Malaysia, as an international contract negotiator working for Rolls Royce & Alstom.

However, there was much that I missed, because I didn’t speak oriental languages.

So, if you are a student and are thinking about a career as negotiator, diplomat or Mediator, I recommend that you learn some foreign languages and spend time traveling and working in the countries where you would eventually like to develop a practice as an international Mediator.

For the rest of us, the next best thing is to read about a culture through the eyes of an anthropologist.

So, I have ordered a print to order copy of Palmer, Michael and Simon Roberts (2020) Dispute Processes: ADR and the Primary Forms of Decision Making 3rd ed, Cambridge University Press. I have also added this title to the Research Bibliography on the ‘Mediation & Advocacy in International Dispute Settlement’ page at www.carlislam.co.uk & will be reading this book in September. I also recommend, Fukuyama, Francis (2011) The Origins Of Political Order – From Prehuman Times to the Frenach Revolution, Profile Books & Ury, William (2024) Possible – How We Survive (and Thrive) in an Age of Conflict, Harper Business.

Comments added:

As Andrew Goodman observes on pp 86 & 87 of his book ‘Advanced Mediation Advocacy’ (2024) – ‘The danger in categorising cultural groups is that the mediator [‘M’] and the lawyer may both fall into the trap of stereotyping participants [‘P’] in the process. In reality, recognising a prototype is not necessarily going to be the key to unlocking cross-cultural difficulties, and should not be regarded as such. At best it may give [M] a steer as to whether it is more important to spend a lot of time in the exploration phase or to move into more of an exploratory/offer phase leading to negotiation quite quickly during the course of the mediation. … In the mediation process where there are these different cultural aspects, it should be clear whether [M] will make more progress by keeping the parties together, or by keeping them apart. Without over generalising, looking at these socio-cultural backgrounds provides some introductory guidance as to the [P’s] and is something of an aid in how to prepare. It should be treated as a starting point … Of course most modern societies, particularly post-industrial societies, will now have a blend of these prototypes. …’