‘Heal the pain!’ – I have started to write a short 900 word article for publication in the Law Society Gazette later in the year entitled, ‘All I Want For Christmas Are Damages – Mediating Music Disputes.’ The full length version will eventually appear on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk along with a Bibliography. ‘Artists Rights’ was one of the modules for the Art Law Diploma course I have been undertaking since 2020. The article is based upon an essay I was drafting for the course earlier in the summer, which I put to one side in order to write about ‘Mediation of Cultural Property Disputes’, ‘Taxation of Heritage Assets’, and ‘Repatriating the Parthenon Marbles using a Trust’. My three essays for the course have now all been written and submitted, and are available to view on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk. This frees me up in my spare time this month to return to ‘Music and Digital Copyright Law’. When I practised as a commercial Solicitor, prior to practising at the Bar, my clients included a start-up record label, an Asian TV channel, and a leading UK school of performing arts. So, I am no stranger to the complex legal world of how music content, and rights in IPR and knowhow are acquired and exploited in the Music, Publishing, and Entertainment Business. This is a global industry, and it feels good to be back, albeit wearing a different hat this time, i.e. writing as and from the perspective of a ‘CMC Registered Mediator’, rather than that of a contract draftsman and commercial negotiator. I am aiming to complete the first draft withing the next 30 days. After that I will be on schedule to commit my free time to writing the second edition of the ‘Contentious Probate Handbook’ for the Law Society from December. Did I mention Christmas in August! I think it will be here before we know it.
I am in the final days of writing as essay entitled –‘The case for repatriating the Parthenon Marbles [‘PM’] using a trust’, for the Diploma in Art Law course I am undertaking at the Institute of Art & Law in London (https://ial.uk.com/).
An original argument which occurred to me this morning as I was writing about the legal merits of the claim by Greece [‘G’] for the repatriation of the PM runs as follows:
· If the PM were/are ‘fixtures’, then they are not chattels.
· Thus, the remedy of conversion in Tort is not available to G.
· Axiomatically the Limitation Act 1980 provisions applicable to claims in conversion do not apply.
· G may be able to make a novel application to a court of equity for: (i) a declaration about the existence of a ‘Constructive Trust’; and (ii) for the recovery of trust property in the possession of the British Museum [‘BM’], which has been converted into their use.
· There is no limitation period for such an application.
· Therefore G is not out of time for bringing a claim in the Chancery Division of the Business & Property Courts in London.
· The Limitation Act 1980, s.21 provides:
‘Time limit for actions in respect of trust property.
(1) No period of limitation prescribed by this Act shall apply to
an action by a beneficiary under a trust, being an action—
(a) in respect of any fraud or fraudulent breach of trust to
which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds of
trust property in the possession of the trustee, or previously received by the
trustee and converted to his use.’
· The definitive legal pronouncement of what is a fixture is found in Berkley v. Poulett  EGLR 86. Whether an article or chattel is a fixture, depends upon:
(i) the degree to which the article in question could properly be said to be annexed to the building; and
(ii) the purpose for which it was put there.
· While this will need to be researched, the fact that the PM were unlawfully removed, cannot and does not, convert them into chattels – not least, because logically, they belong as part of the Monument from which they were taken – which if the Monument had been sited in England, would mandate their return and re-unification. As far as I am aware, nobody has ever advanced and developed this novel legal theory – not even the Government of Greece.
The thesis of my essay – ‘The case for repatriating the Parthenon Marbles using a trust’, is that ‘the first challenge for those negotiating the repatriation of the Parthenon Marbles [‘PM’] is to find a way of reconciling the conflicting and competing interests of the ‘Internationalist’ market nation, i.e. the UK, with those of the ‘Nationalist’ source nation, i.e. Greece, in a way that satisfies and meets each primary stakeholders’ underlying interests and needs’. I ask – ‘can the conflicting and competing interests of the UK and Greece be reconciled using a “Trust” as a bridge?’ I am completing my research this week, and yesterday I discovered the following commentary which provides anecdotal evidence to support my theory that a Trust can indeed be used to reconcile the conflict between the competing International Cultural Heritage Law theories of:
(i) ‘Cultural internationalism’; and
(ii) ‘Cultural nationalism’.
‘Generally speaking, there seems to be a move towards settlements that are not formally expressed in terms of victory and defeat, but rather acknowledge the existence of legitimate interests on both sides. The stage of recognising dual nationality or a form of collective ownership has not yet been reached, but it is clear that reconciliation of interests is becoming the solution increasingly preferred by all concerned . … The imaginative powers of lawyers know no bounds. … [A] remarkable case is that of the Afghan cultural assets held for many years in the Afghanistan Museum in exile in Bubendorf, Switzerland, with a view to safeguarding them and one day making restitution. This was a form of trusteeship that ended on the day UNESCO decided that the property in question could be handed back. [Another original solution] has been suggested in this field based on the Anglo-American trust and the Waqf [i.e. Mosque Trust] in Islamic law.’ (Cornu, Marie & Marc-Andre Renold ‘New developments in the restitution of cultural property: alternative means of dispute resolution’ , 17 Intnl J. Cultural Prop.1 (2010), pp.16-22).
The working draft of the essay appears on the ‘Mediating Art & Music Disputes’ page at www.carlislam.co.uk’.
Extract from my third essay for the IAL’s Diploma in Art Law course – ‘The case for repatriating the Parthenon Marbles using a trust structure as under international law National Museums have a broad “fiduciary” duty to strive to be better collaborative custodians of world heritage.’ The working draft appears on the ‘Mediation of Art & Music 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 internationalism’ – ‘[Proponents] view cultural property as a component of common human culture, independent of a nations property rights in, or national jurisdiction over, given cultural object.’ …
2. ‘Cultural nationalism’ – ‘[Proponents] believe that cultural objects belong within the boundaries of the nation of origin and should stay there. If found abroad, they should be repatriated. Their objective is a system of cultural property law that requires the nation in which a cultural object is found to return it to the source nation. … [Proponents view] cultural objects as an integral part of a nations cultural heritage [and] elevate the symbolic nature of these cultural objects have for their respective communities and place them above any international property interests.’ …
‘Market’ and ‘Source’ countries share a common interest in combatting the global illicit trade in antiquities, which is linked to the drugs trade and terrorist financing, see the Report of the Ministerial Advisory Panel On Illicit Trade (December 2000) …
‘Collaborative Cultural Heritage Diplomacy (‘CCHD’) is a diplomatic forum/arena in which the UK working together with the United States and the EU, can provide global leadership. Cultural Heritage Diplomacy is at the heart of EU foreign policy, see: A new strategy to put culture at the heart of EU international relations (europa.eu).
If Labour form the next government, then CCHD is a potential tool for building a bridge with Europe linked to international trade.’
My third essay for the IAL’s Diploma in Art Law course is,
‘The case for repatriating the Parthenon Marbles using a trust structure as
under international law National Museums have a broad “fiduciary” duty to
strive to be better collaborative custodians of world heritage.’ –
I have started to write the essay, which I am aiming to submit along with my second essay in September. The working draft appears on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk.
Structure & Content:
· Existence of a ‘Collaborative Custodial Duty.’
· The author’s ‘Fiduciary Theory of Art.’
· International Law.
· Distributive Justice.
· Use of a Trust as a vehicle for collaboration in repatriating the Parthenon Marbles [‘PM’] to Greece.
‘The analytical starting point is does a Collaborative Custodial Duty exist? The author submits that theoretical underpinnings for the existence of a Collaborative Custodial Duty include:
(i) The author’s ‘Fiduciary Theory of Art’.
(ii) International Law.
(iii) [Principles of] Distributive Justice. …
[Under International Law] principles of ‘collaborative’ restitution can be derived from at least three sources:
(i) The precepts underlying International Conventions … ,
(ii) The Philosophy of International law.
(iii) Principles & Norms of International Humanitarian Law (‘IHL’) in relation to Cultural Heritage.
Applying doctrinal principles of ‘fiduciary government’ … are states obliged under International Law to act, or should they be obliged to act, as custodians/fiduciaries of cultural property?
In ‘A Fiduciary Theory of Jus Cogens’, Evan J Criddle and Evan-Fox Decent developed a fiduciary theory of jus cogens (i.e. norms that command peremptory authority, superseding conflicting treaties and customs in international law], arguing that, “States must honor peremptory norms as basic safeguards of dignity because they stand in a fiduciary relationship with all persons subject to their power and therefore bear specific duties to guarantee equal security under the rule of law … [and] that this fiduciary model of state sovereignty advances international human rights discourse beyond vague notions of ‘public policy’, ‘international consensus’, and ‘normative hierarchy’ toward a more theoretically defensible and analytically determinate account of peremptory norms.” …
The intersection in International Law between:
(i) obligations erga omnes; and
(ii) jus cogens rules,
is a potentially rich source of principles that can be applied in the practice of repatriating cultural property through a process of ‘collaborative’ Cultural Heritage Diplomacy. However, the underlying foundational principles require scholarly formulation, definition and classification.’ …
The ‘tipping’ point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute – Extract from my essay – ‘Mediating Cultural Property Disputes’ (which I am currently writing). The working draft appears on the ‘Mediating Art & Music Disputes’ page at www.carlislam.co.uk.
[The] ‘human dimension’ of cultural heritage – i.e. the special feelings that items of cultural heritage evoke in individuals and peoples because of their symbolic, emotional, religious, and historical qualities – can be overlooked in the course of the [judicial] adjudication process. This human dimension is at stake in all cases . … Indeed, cultural objects have no intrinsic value, in the sense that they cannot be defined solely by their physical characteristics. The values ascribed to them – be they historic, scientific, educational, aesthetic, or financial – depend on the meanings placed upon them by individuals and communities . … Heritage’s value is therefore relational.’ (‘The Settlement of International Cultural Heritage Disputes’ by Alessandro Chechi, Oxford University Press (2014), pp. 1-.3. … In the Mediation of a Restitution claim, the first principle which needs to be grasped is that a museum or gallery cannot voluntarily dispose of its property, however compelling the moral demand, unless the disposal is lawful. ‘Although the law is not blind to moral claims, trustees and those who control charitable institutions can only satisfy such claims within the framework of the law. As charities depend for their continued existence on public support, on the recognition by the public of a moral obligation to donate to charity, they can ill afford to ignore the pressure of moral claims. … Charities should aim to occupy the moral high ground, otherwise their standing and reputation may be set at risk.’ (‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’ by The Hon. Sir Anthony Mason AC KBE, Art Antiquity And Law, Vol VIII, Issue 1, March 2003, page 3). As a general rule, trustees would be ill-advised to return a work of art unless they were able to look to the Attorney-General , the Court, or the Charity Commissioners, for approval. … The ‘tipping’ point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute, is at the intersection of: (i) ‘Practical Ethics’, i.e. ‘doing the right thing’; with (ii) the exercise by Museum Trustees’ of their legal powers in accordance with their legal duties. At which point ‘conscience’, ‘morality’, and ‘ethics’, collide with law and can become fused in equity. Is a new restitution paradigm emerging whereby in the exercise of their duties and powers, Trustees can resolve to de-accession an object in the Museums’ collection, by making an ex-gratia disposition of a trust asset under the Charities Act 2022, based upon the application of ‘Practical Ethics’ – i.e. because restitution is the right thing to do in the circumstances of the claim?
· In my forthcoming two-part article for Taxation (Tolley), I discuss the operation of the Cultural Gifts Scheme (‘CGS’), FA 2012, Sch 14.
· CGS exists to encourage ‘lifetime’ giving of pre-eminent items to museums and other public cultural institutions in return for a reduction in the donor’s tax liability.
· An individual with a liability to Income Tax, CGT, and a company with a liability to Corporation Tax, can all benefit under the scheme.
· In the essay I am currently writing for the Diploma in Art Law course – ‘Mediating Cultural Property Disputes’, one of the ‘Ethical Principles’ I advance is the existence of a custodial duty to preserve and protect cultural property.
· I argue that this is a quintessentially a ‘fiduciary’ duty.
· The underlying premise is that every civilized society is a ‘fiduciary of humanity’, and so are their governments.
· This is derived from classical theory about ‘Fiduciary Government’, which I apply to the policies and practice by Governments of institutional global governance through e.g. the agency of UNESCO.
· Under International Law, there is a relationship between the ‘human environment’, ‘development’ and ‘culture’, see my blog, ‘Cultural Heritage Diplomacy/Mediation as a geopolitical tool of environmental protection’ on the ‘Geopolitical Mediation’ page at www.diplomaticlawguide.com. See also my draft Article – ‘Transforming Conflict Through Humanitarian Mediation & Cultural Heritage Diplomacy’, on the ‘Geopolitical Challenges’ page.
· I wonder – could the UK Government demonstrate global environmental leadership by establishing a fund to e.g. finance the purchase, replanting and restoration of tracts of the Amazon Rainforest, by:
– Securitising the underlying proprietary interest in the land purchased, and potential revenue streams e.g. from licensing research about plants growing in the Rainforest, which may result in the development and sale of new pharmaceutical products worldwide.
– Selling those financial instruments, i.e. ‘certificates’ to investors who:
(i) if an individual, could either offset the market capital value of the ‘instruments’ against a future tax liability, including IHT by transfering the instruments back to the issuer in exchange for a tax benefit (i.e. so the instruments would act as a ‘hedge’ against future IHT), or sell them to another investor i.e. in a secondary market; or
(ii) if a company/pension fund – obtain carbon credits in exchange for the capital invested.
Could this idea be developed to source and obtain financing for other environmental projects in the UK, or anywhere in the world?
Could an ‘ethical’ Islamic Finance ‘Sukuk’ be developed based upon this idea?
I submitted my first essay for the Diploma in Art Law course at the Institute of Art & Law in London on Thursday night. I have also written and submitted to my editor at Taxation (Tolley), a two-part article entitled, ‘Mediating Estate Disputes Involving Art & Heritage Property’, for review, approval and publication later in the year. I have two more essays to write for the Art Law Diploma course:
– ‘Mediating Cultural Property Disputes.’ (Which I am currently writing).
– ‘Renegotiating Artists’ Rights Through Mediation.’ (To be written in October/November).
The working drafts appear on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk. The structure of the Mediating Cultural Property Disputes essay is:
– Museum Trustees’ Duties and Powers.
– Ethical Principles.
– Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Restitution/Repatriation.
· A new ‘Restitution Paradigm’?
In the Introduction to the essay, I argue:
‘At some point in a successful Mediation, a “paradigm shift” occurs in each Participant’s [‘P’s] perceptions, thinking and feelings, which opens the door to creative ‘out of the box’ thinking through collaborative problem-solving, resulting in the abandonment of what prior to that moment, were rigidly held and fiercely fought positions.’
In the conclusion, I argue that ‘what appears to me to be a missing piece of the jigsaw, is the existence of a new paradigm, whereby in the exercise of their duties and powers, Trustees can resolve to de-accession an object in the Museum’s collection, by making an ex-gratia disposition of a trust asset under the Charities Act 2022, based upon the application of ‘Practical Ethics’ – i.e. because restitution/repatriation is “the right thing to do in the circumstances” of the claim. As far as I am aware, like a field of pure white snow in winter, this is an area of research, where nobody has yet worked out what flowers may appear in the Spring.’
The research Bibliography for this essay, which includes 23 articles, runs to over two lever arch files, and I am on schedule to complete my reading within the next 14 days, with the aim of completing the writing of the essay for submission on Sunday 3 September.
For the remainder of the year in my free time, I can focus on the third essay, about Mediating Art & Music copyright disputes – which I am examining and writing about from the novel angle of using Mediation as a process to ‘re-negotiate’ Art & Music deals, worldwide.
My Q. was:
‘What are the geopolitical implications & potential consequences of the UK withdrawing from the CITPP in order to rejoin the EU as a full member?’
What I picked up listening to the panel discussion and answers to my Q are:
· CPTPP will add £1.8bn/year to the UK economy after 10 years = less than 1% of UK GDP (around 0.8%).
· It is unlikely that the UK will rejoin the EU for at least another 10 years [i.e. because of: domestic issues; ‘they do not want us back’; & conditional on acceptance of the Euro].
· China & Taiwan are unlikely to join the CITPP.
· There is an opportunity for China to silence its critics by allowing the Special Administrative Region of Hong Kong to join as the world is economically de-coupling from HK & this would rejuvenate HK’s economy. This is not likely to happen.
· There appears to be an Achilles heel in the CPTPP – Cyber-Security & Data Regulation. This is an obstacle to certain states being allowed to join. If rules were relaxed the UK might have to withdraw.
· There is no obvious security dimension/benefit of the UK being a member of CPTPP.
· Labour have no appetite to take the UK out of the CPTPP & to protect the image of ‘Global Britain’ as a totem are likely to maintain the Pacific tilt.
· A geopolitical consequence of withdrawing is that in Asia the UK would appear to be ‘going back to its European home’ i.e. being in geopolitical retreat.
· The world has changed.
· The conventional orthodoxy of the past about a rules-based global order eventually dominating & regulating international trade & competition between nation states no longer reflects reality.
· Perhaps there is an opportunity to design a new world order for international trade but that remains to be seen.
· Perhaps the CPTPP has a role to play in shaping that order?
· Meanwhile Britain & a future Labour Government who will want to get as close as they can to Europe, will have to make the most of what we have got, i.e. the situation we are in post-BREXIT.
As soon as the video of the talk is available, I will post it on the ‘Geopolitical Challenges’ page at www.diplomaticlawguide.com & you can draw your own conclusions. My overall and abiding impression is that in relation to political rhetoric, theory and ideology about achieving economic growth through international trade, the reality is that the UK is drifting on the high seas almost entirely at the mercy of competing ‘geopolitical’ trade winds over which we have little or no control and influence, and that steering economic growth will be a very slow and gradual process. Who knows what lies ahead? As a nation, we must decide who we are & what our values are in the post-BREXIT world of international trade. Otherwise, we have no political compass.
HMCTS ‘Guide to the Intellectual Property Enterprise Court Small Claims Track ’ was publioshed in July:
Par 4.3 states:
‘The IPEC SCT is only suitable for claims where the amount in dispute (not including costs) is £10,000 or less. If the claim has a value of more than £10,000, it is unlikely to be suitable for hearing in the SCT, unless the court orders otherwise. The IPEC SCT is suitable for claims where the remedies being sought are damages for infringement, an account of profits, delivery up or destruction of infringing items and/or a final injunction to prevent infringement in the future. Interim remedies (which are remedies ordered before the final hearing of the claim) such as interim injunctions, asset freezing orders and search and seizure orders are not available on the IPEC SCT. A claim seeking these remedies, which would otherwise be suitable for the IPEC SCT, should be made on the IPEC multi-track instead.’
Para 7.12 states:
‘Like all civil courts, the IPEC SCT encourages parties to consider the use of Alternative Dispute Resolution (ADR), as an alternative means of resolving disputes or particular issues within disputes. Parties to IPEC SCT cases may (or if required to do so, must) use ADR, including the Small Claims Mediation Service which is a FREE service provided by HM Courts & Tribunals Service (see Small claims mediation service – GOV.UK (www.gov.uk)). It may only be accessed after a claim has been issued. Mediation appointments are conducted by telephone and so the parties are not required to attend at court or at the mediators’ offices. Parties can also mediate through the small claims mediator without speaking to one another. The mediation appointment is:
• limited to one hour
• confidential • only proceeds if both parties agree to mediation.
If mediation is unsuccessful then the parties will continue to a final hearing of their IPEC small claim as usual.’
See also: ‘MoJ confirms compulsory mediation for civil claims up to £10,000’: https://lnkd.in/eFjBk97g ; and the ‘Mediating Artists’ Rights Claims’ essay on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk. The essay is an incomplete work in progress, and in September 2023 I will be writing sections for inclusion about digital copyright and copyright in music, lyrics, songs and recordings.