One of the speakers at the online Institution of Art & Law Training day on 16 November, which I am attending, is New York attorney Leila Amineddoleh, who is the founder of Amineddoleh & Associates in New York, and one the world’s leading art restitution lawyers.

If you Google – ‘Foundation’s arguments thwarted in New York case of Nazi-looted Schiele + Institute of Art and Law’, you will see that the author, Stephanie Drawdy who is an American artist and attorney wrote:

‘For the part of its decision holding that laches would not bar the heirs’ assertions of title, the Court was first required to address the question of which law would be applied to the dispute. … The Court … chose to apply New York law, citing the state’s “overwhelming interest in preserving the integrity of its market” (Decision at 16, quoting Reif v. Nagy).

The door was then open to an application of the U.S.’s Holocaust Expropriated Art Recovery (“HEAR”) Act of 2016, which the Court noted “promotes restitution to Holocaust victims” (at 16). A key provision of the HEAR Act sets forth that “defense[s] at law relating to the passage of time” should not be allowed to defeat heirs’ claims (at § 5(a)). …

In finding Zuckerman “most closely aligns” with the foundation’s preferred resolution in Lehman, Justice Odorisi noted the Zuckerman Court’s admonition that each case is dependent on its own facts and in other cases laches might “not impede recovery for claims brought pursuant to the HEAR Act” (at 22, 17). The Lehman Court found the facts before it constituted just such a case. Despite “some similarities” with Zuckerman, the Court found “a notable and significant difference”: the pre-war owners of The Actor (the Leffmans) survived the war while Mayländer and Rieger both perished, leaving their heirs with the almost impossible task of locating and reconstituting their collections (at 22). “As the Court observed in Reif, it would be ‘absurd’ to allow the laches defense to defeat the claims of the Mayländer Heirs and Rieger Heirs” (at 25).’

My Q.’s for Leila are:

(i) What is the juridical/policy/moral rationale underlying the impermissibility of laches operating as a bar to restitution under the HEAR Act?
(ii) Since laches is an equitable principle and not an absolute statutory time bar, are there any circumstances in which she can forsee ‘laches’ (i.e. in a claim based upon the existence of a constructive trust), not being permitted by an English court, to bar a claim for restitution of ancient art, i.e. by acknowledging that the juridical/policy/moral rationale underlying HEAR is a generic principle of art restitution that is of wider application, since it is grounded in universal ethics and morality?

In my online talk last week to members of the SCMA worldwide, one of the principles that I spoke about was, ‘Empathetic communication’ i.e. listening to understand in order to be understood.

I argued that, ‘The only way to get someone to do something is to make the other person want to do it.’

When dealing with people as opposed to machines, you are not dealing with creatures of logic, but with creatures of emotion, bristling with prejudices and motivated by pride and vanity.

Instead of condemning them you need to understand why they have behaved as they have.

So, you must put yourself in their shoes in order to see things as they do, i.e. you need to listen to them with empathy.

When you listen to a person with empathy, you give them ‘psychological oxygen’.

By affirming their vital psychological need for understanding and acknowledgment, you can then move forward, by becoming partners in jointly solving a shared problem. This I believe is true whatever the cultural differences are between those involved, i.e. having your voice heard, and being treated with respect, are universal negotiation ‘deal-openers’ that transcend any culture.

When you listen with empathy you also open yourself up to being influenced.

‘Being open to influence is the key to influencing others.’

Now as Michael Caine might say – ‘Not many people know that!’

The 60 minute  talk was recorded on Zoom and I have received permission to post it on my forthcoming YouTube Channel – ‘Conflict Negotiation & Mediation’, once I have received the link.

I am aiming to launch the Channel on or before 20 November.

As far as I am aware it will be the first YouTube Channel of its type, exclusively in the genre of teaching conflict resolution, negotiation (i.e. Mediation Advocacy) & Mediation skills to students, academics, and practitioners worldwide. So, watch this space!

In the 1990’s I worked in-house for 2 multi-national engineering giants who were leaders in the field of power-projects. In those days the idea of privately-financed projects worth millions (the last one I was involved in was over £800 million) was emerging. Today these projects involve many multiples of that. One of the key risks analysed by merchant banks and other investors was/is ‘political risk.’

Hold that thought for a moment!

Google – ‘Judge Napolitano + Larry Johnson : Israel and Ukraine Covering Up Failures.’ In this programme it was reported that:

(i) Israel’s attack on Friday was planned to consist of 3 waves. The 1st was to suppress Iranian air defences so that bombers could then enter Iranian airspace to fire precision guided missiles at their targets within range.

(ii) Israel was unable to suppress Iran’s air defence systems (‘ADS’) & no aircraft entered Iranian airspace.

(iiI) The 2nd & 3rd waves were called-off.

If correct, then what happened, i.e. why did Israel call off the 2nd & 3rd waves?

Google – ‘Judge Napolitano + Alastair Crooke : Israel’s Preference For Self-Destruction.’

According to Alastair Crooke’s sources during the 1st wave Israel encountered an unknown ADS which was capable of shooting down stealth aircraft.

If correct, then apparently this will have been the first time that such a system has been tested in combat as hitherto, it was not known to exist.

If Iran has demonstrated that its has an ADS which can lock on to and destroy approaching stealth aircraft, then Israel:

(i) cannot intercept incoming hypersonic missiles; &

(ii) cannot launch an attack on Iran using stealth aircraft without risking their aircraft from being shot down,

i.e. Israel cannot deter a future attack by threatening an effective counter-strike.

Therefore, by attacking Iran, it appears that Netanyahu has demonstrated that Israel has lost escalatory dominance to Iran.

So, placing myself in the shoes of an investor, what I am wondering in the context of evaluating ‘political risk’, is how any consortium of construction & infrastructure companies can manage the political risk of what they are building being destroyed before they have completed the project & been paid in full?

If they cannot manage that risk, then how can western construction & infrastructure companies undertake projects inside Israel?

Therefore, if e.g. the Houthis/Hezbollah attack Israeli infrastructure, then who is going to rebuild it?

Netanyahu and his government appear to have caused more self-inflicted harm to the economic security and viability of Israel as a functioning state than they foresaw & realised when they attacked Iran.

That is because they appear to have revealed to the world that the ‘Emperor has no clothes!’

According to the report in the link below, the Israel lobby in the UK has funded half of Keir Starmer’s cabinet, and Labour’s top team have accepted hundreds of thousands of pounds from pro-Israel funders –

https://lnkd.in/esX2Rk56

If this report is factually correct, then I am left wondering:

(i) How many serving Government Ministers and Labour MP’s in Parliament are in favour of the creation of a Zionist ‘Greater Israel’? – See my previous post – ‘What political mandate do Keir Starmer & David Lammy have to support Israel in bringing about a Zionist Greater Israel?’

(ii) How many serving Government Ministers and Labour MP’s in Parliament support what Israel is doing in: Gaza (i.e. ethnic cleansing and genocide); Lebanon (i.e. invasion, assassination, bombing & ethnic cleansing); Syria (bombing & destruction of an embassy); and Iran (assassination, bombing and possibly all out war in MENA – which could result in the crashing of the world economy as we know it)?

Can you name a single recent Neocon/Zionist planned war in which the US/UK has been involved, that resulted in a successful outcome for the US/UK – i.e. Afghanistan; Iraq; Libya; and Ukraine?

So, what makes Government Ministers and MP’s in Parliament today, believe (if they do), that it is in the paramount British national interest to help Israel to establish a Zionist (i.e. mainly white-settlor colonial ‘ethno’-supremacist/ apartheid) hegemony in MENA, i.e. by establishing a ‘Zionist Greater Israel’?

What is the geopolitical rationale & benefit to the UK?

What if Israel fails?

Since Israel is now at war with nearly all of its neighbours except Egypt and Jordan, and appears to be planning to engage in a long war with Iran which could trigger a regional war in MENA, how can Israel possibly succeed?

Do the military maths!

So, have Starmer and his Ministers calculated the price to the UK of engaging in a long regional conflict in MENA?

If they have, then:

(i) What is the price in UK lives & treasure?

(ii) What provision/contingency has been included in the budget?

Starmer has committed the UK to provide £3 billion a year of military support for Ukraine until 2030/31, and for as long as needed.

What is the amount that in addition, he is willing to commit the UK to provide to the Zionist regime in Israel?

Where in Labour’s election manifesto did it say that the they would scrap the winter heating allowance and increase taxes with one hand, and with the other give billions to Israel so that the Zionist regime could further its ambition of clearing all Arabs off the land of ‘Zionist Greater Israel’ by: (i) committing ethnic cleansing and genocide; (ii) bombing Lebanon ‘back to the stone age’ (in the words of Israel’s Defence Minister), and now going to war with Iran?

What has ‘eliminating’ civilians digging family & friends buried alive under rubble following an Israeli attack on residential buildings in Gaza, have to do with the security of Israel?

If you Google – ‘Daniel Davis Deep Dive + Israel Strikes Iran – Precise but FEEBLE + YouTube’ and fast forward to 11:32, you will see film footage in which following an Israeli attack on residential houses in which 38 people were killed, a boy digging his Mother out of the rubble says:

‘I looked at my Mother and did not know what to do.
While I was trying to dig her out, I looked up and saw a Tank aiming at me.
Everybody else was doing the same and digging in fear.
Then a quadcopter came and started shooting at us.’

Some members of the IDF have refused to commit war crimes.

‘We … have been on reserve duty in the occupied territories, and were issued commands and directives that had nothing to do with the security of our country, and that had the sole purpose of perpetuating our control over the Palestinian people. … The missions of occupation and oppression do not serve (the) purpose (of Israel’s defence) – and we shall take no part in them.’ (Combatant’s Letter, ‘Courage to Refuse.’ Cited in Footnote 15 of Chapter 7 on p.140 of ‘The Cambridge Handbook Of The Just War’, edited by Larry May (2018). The letter is no longer accessible on the internet).

Google – ‘Anadolu Ajanasi + Israeli minister’s Greater Israel remarks spark controversy.’

Look at the 2nd map.

It shows Zionist ‘Greater Israel’ including what is today: Gaza; the West Bank; Lebanon; Syria; Iraq; Jordan & Egypt.

So, Israel is not defending itself.

It is committing the war crimes of : (i) ethic cleaning; & (ii) genocide, in order to clear all Arabs off the land it has designated as being part of Zionist ‘Greater Israel.’

To achieve that paramount strategic & stated government policy aim, Israel must first defeat all of its ‘enemies’ including Iran.

So, I do not think that a regional war has been avoided. I think that it is just beginning.

What I am wondering is:

(i) since using UK taxpayer monies to help Israel bring about its vision of a Zionist ‘Greater Israel’ was not mentioned in Labour’s election manifesto; &
(ii) there has been no referendum on the issue;

then what political mandate do Keir Starmer & David Lammy have to support the bringing about of a Zionist ‘Greater Israel?’

If they are not doing this, i.e. in our name & using British taxpayer’s money, then why have they taken sides with an extreme Zionist regime whose stated aim is to establish a Zionist ‘Greater Israel’?

I.E. why has the UK sided with Israel, who commit acts of ethnic cleansing & genocide before our eyes every day?

On 1 October (when they attacked Lebanon) & on 26 October (when they attacked Iran), Israel also acted in breach of Article 51 of the UN Convention. See my comment.

‘The use of force is prohibited as a choice of conduct toward another state, just as domestically the criminal law forbids individuals from violence toward one another. A monopoly on legal use of force rests with the supranational organisation, the UN, not individual states. Accordingly, Article 51 to the UN Charter copies the domestic systems rule of self-defence in cases in which the government cannot bring its power to bear to prevent illegal violence’ (John Yoo, ‘Using force’ University of Chicago Law Review 71 (2004) page 738.)

So, why do Keir Starmer & David Lammy appear to be saying that by attacking Lebanon & Iran, i.e. in breach of Art 51 of the UN Charter, that the Zionist regime in Israel was acting in ‘self-defence?’

Israel has also attacked UN peace-keeping forces in Lebanon.

Are Starmer & Lammy also saying that Israel was also acting in ‘self-defence’ when it did this?

If they are, then where does that leave the western liberal International Rules based order in the eyes of the Global South & BRICS?

In other words, by taking sides with the Zionist regime in Israel, what permanent diplomatic damage have these two politicians done to the reputation of Britain globally and to our economic/trading interests?

I think that the UK under the leadership of Starmer & Lammy could end up between a ‘rock’ (i.e. Donald Trump) & a ‘hard place’ (i.e. BRICS + the rest of the Global South). I am not convinced that Starmer & Lammy (neither of whom have ever worked in international trade – which I have), understand that when a procurement specification is designed, it can specify standards and requirements that make exporting from the UK uneconomic/impossible. In other words, that if BRICS (+ states in the Global South) choose to do so, that they can exclude UK businesses from participating in international trade in markets spread across 2/3 of the surface of the globe. I hope that Rachel Reeves, her Treasury advisors & the civil servants in the FO understand this. Let’s see what unfolds. My fear is that under Labour, Britain will become increasingly excluded from participation in global markets. That is potentially a disaster for UK businesses & ultimately for UK taxpayers, & may be the price the UK is made to pay for siding with ‘Zionism.’ I am wondering just how educated, geopolitically informed, worldly, experienced and bright, these Labour politicians actually are?

How can Saudi Arabia [‘SA’] become a full member of BRICS because it’s wagon is firmly hitched to the US?

SA holds $140 Billion in US Treasury Bonds.

SA’s Royal Family & political elite have also heavily invested in US & western assets.

These assets can be expropriated, frozen and confiscated at the flick of a pen.

In other words, SA & its rulers are conflicted.

So, if SA grants Israel permission to use its airspace to attack Iran what will Iran (with the blessing of Russia & China) do?

Against what targets and where will Iran retaliate in order to re-establish escalatory dominance and deter a future attack by Israel?

If the Straits of Hormuz become unnavigable because of war the risk is that the world economy as we know it will crash.

So, will the US at SA’s bidding prevent Israel from using SA airspace to attack Iran?

If not – what is the future of the Kingdom in MENA?

If SA becomes geopolitically unstable – what is the future of the US in MENA?

If as reported, prior to the BRICS conference this week, SA made a diplomatic promise to Iran that it would not become involved, i.e. allow its territory to be used by Israel/US to attack Iran & to refuel Israeli long range aircraft returning from an attack on Iran, then surely the regime in SA will diplomatically have burnt its bridges with BRICS if the promise is not honoured?

How could any diplomat, or for that matter any arab on the street, trust the word of a Saudi Prince or monarch ever again, if SA does allow Israel/US to use its territory & airspace in breach of such an undertaking?

In any event Iran which became a full member of BRICS earlier this week, could block Saudi membership, leaving SA diplomatically isolated in MENA.

So, in choosing a side, will Saudi Arabia look to its past or to its future?

The problem for SA is that it does not know whether the US can and actually will prevent an attack by Israel on Iran.

If Israel does use SA territory/airspace to attack Iran, there will be no going back, because Israel will have sealed the fate of: (i) the Kingdom; and (ii) of the US, in the region. So SA must pin its colours to one mast or the other before an attack is launched.

Now, if I can join up these elementary dots, then you would expect that senior members of the Biden administration have also arrived at the same conclusion?

All it takes to stop a regional war in MENA is one phone call from Biden to Netanyahu.

So, if Israel launches a first wave of attacks against e.g. Iranian radar installations, before 5 November, then we will know that either: (i) Biden did not make the call; or (ii) if he did, that the US has no leverage/control over Israel.

If that happens, what signal will this send to China who have a strategic interest in keeping maritime traffic flowing through the Straits of Hormuz?

So, let’s see what happens – hopefully nothing.

Notes added since:

At 22:52 BST Middle East Eye in Washington reported – ‘Israel’s war planning is now factoring in its jet fighters taking a circuitous route around the Arabian Gulf to attack Iran, an operation that would require extensive mid-air refuelling, one current and two former senior US officials told MEE on the condition of anonymity.
Iran has been vocal about what they say is Gulf states’ reluctance to aid Israel. Iranian Foreign Minister Abbas Araghchi on Tuesday said Tehran has secured a pledge from neighbouring countries not to allow their “soil or airspace” to be used in any attack, as it girds for Israel’s retaliation to its missile attack.
“All our neighbours have assured us that they won’t allow their soil or airspace to be used against the Islamic Republic of Iran,” Araghchi said on Tuesday.” LikeReply

According to India Today:

‘100 fighter jets carried out the attacks in 3 waves on 20 missile and drone facilities of Iran. The 1st wave of attacks was on Iran’s radar and air defence facilities, clearing the path for following strikes on military bases. Iran’s missile and drone facilities were targeted in the 2nd and 3rd wave.’

So, whose airspace was used to launch 180 missiles from fixed-wing aircraft & refuel 100 Israeli jets returning over that airspace in 3 consecutive waves?

Tehran was a target.

It appears that Iran’s air-defences intercepted nearly all of the incoming missiles.

The number of declared fatalties is two Iranian Air Force Officers.

It appears that SA airspace and territory was NOT used in the attack.

Across MENA – Yemen, Oman, SA, UAE, Qatar, Kuwait, Egypt, Jordan & Iraq have all condemned Israel.

So, diplomatically there is a united front in MENA which recognises that Israel attacked the sovereign state of Iran in breach of International Law.

This diplomatic grouping includes 2 BRICS members: UAE & Egypt.

Syria & Turkey have applied to join.

Bahrain & Tunisia have also expressed an interest in becoming a member.

SA membership has not yet been approved.LikeReply

Al Jazeera reported 17 hours ago (i.e. before Israel attacked Iran) that:
‘At least 600 patients along with their companions, and staff members, are trapped at the Kamal Adwan Hospital in Beit Lahiya as the Israeli military besieges the medical facility.
Israeli forces raided the hospital in northern Gaza on Friday and ordered patients to move down to the main courtyard as they conducted mass arrests.
At least two children have died in the intensive care unit after the hospital’s generators stopped and the oxygen station was targeted, the health ministry said in a statement.
Among those inside are 195 patients, and 70 medical staff members.
The raid came a day after Israeli tanks shelled the compound of the hospital, one of the few remaining functioning medical facilities in the north of the enclave.
He warned that the hospital could become a mass grave as one patient was dying every hour as a result of the Israeli military assault.
Israeli forces “stormed” the hospital, “detaining hundreds of patients, medical staff and some displaced individuals from neighbouring areas who sought refuge”. Fires had broken out, making it difficult for people to evacuate the building and for ambulances to operate.’LikeReply

Film shows Israeli soldiers threw mattresses & medical supplies onto the floor & smashed ceilings. Medical staff are reported to have either been taken away for interrogation or are missing. What the IDF did is a war crime. Keir Starmer has not commented upon/condemned the IDF assault on civilians (including children – now dead as a result) inside the hospital. Earlier today he said: ‘I am clear that Israel has the right to defend itself against Iranian aggression.’ Since, Israel attacked the sovereign state of Iran in breach of International Law, his statement is legally non-sensical. Israel are on trial at the ICJ for genocide. Starmer, who is a human rights lawyer, does not appear to know/understand that: (i) the absolute prohibition against Genocide is a ‘jus cogens’ norm of International Law, i.e. that there is no defence to genocide – whatsoever; and (ii) even if there were, that because Israel is an occupier in Gaza, ‘self-defence’ is not available as a defence to Israel under International Law. So, what Starmer has said over the last 12 months about Israel acting in ‘self-defence’ v. the civilian population in Gaza, is not only legally incorrect, it is complete nonsense. Likewise, David Lammy.

I have just submitted the following book review to Amazon:

‘Comprehensive, well-written, and erudite. If you are student of negotiation and mediation or a dispute resolution practitioner this book provides you with all that you need to know about negotiating settlement of a dispute. This should be a core textbook on undergraduate law courses and belongs on the shelf of dispute resolution practitioners in all jurisdictions.’ (Reviewed by Carl Islam, Barrister, CMC Registered Mediator and author).

As Professor Jordaan states in the Preface:

‘The primary aim of the book is to bring together relevant developments outside the narrow field of formal law – namely in the fields of conflict handling, psychology, neuroscience, decision-making, dispute prevention and resolution, negotiation and mediation – in a way that will assist lawyers to broaden their repertoire of advisory, advocacy, counselling and process design skills so as to better serve the needs of their clients, while also promoting access to justice.’

I would recommend this book as the first port of call for both students and practitioners searching for erudite, balanced, and wise answers to the practical questions and challenges that those of us who are involved in the negotiation and mediation of disputes face on a daily basis. This book is your trusted guide.

I have given it a 5-Star rating.

The book is of course listed in the ‘Research Bibliography’ set out toward the end of the ‘Mediation Advocacy’ page at www.carlislam.co.uk, which I updated earlier today.

• Let’s begin with a thought experiment – Imagine holding up 4 coloured pencils: ‘Blue’; ‘Green’; ‘Red’ and ‘Purple’.

‘Blue’ = MA.1 (i.e. you).

‘Green’ = P.1 (your lay client).

‘Red’ = P.2 (the other party in dispute).

‘Purple’ = P.2’s MA i.e. their Mediation

Advocate (‘MA.2’).

• Since they all have the same rate of acceleration, when simultaneously dropped, they will all arrive at their end destination, i.e. on the ground, at the same time. This is a law of physics.
• However, in Mediation there are no laws of physics.
• Since you (MA.1) cannot know what P.2/MA.2 are actually thinking, and nor can they about what you and P.1 are actually thinking, the outcome of the process is always to an extent uncertain and unpredictable.
• So, how do you as a Mediation Advocate (i.e. MA.1) reduce the uncertainty, i.e. increase the odds of settlement?
• 1st – You prepare yourself and your lay client (i.e. P.1) to negotiate effectively with P.2/MA.2, about terms of a ‘deal’ that both sides can live with, i.e. that is ‘enough’, thereby avoiding the further incurrence of unquantifiable and irrecoverable costs (i.e. litigation risks).
• 2nd – You hook P.2/MA.2 i.e. you irresistibly engage their interest and appetite. You do this by making an ‘interesting offer.’
• P.1/MA.1 can only do ‘2‘ if they have done ‘1‘.
• So, while the outcome in Mediation, unlike a pencil falling to the ground, is to an extent always uncertain and unpredictable, if you and your lay client have prepared to negotiate ‘effectively’, then you increase the chances of ‘doing a deal’ before the end of the Mediation Day.
• That is possible even if P.2/MA.2 have not prepared effectively, and are initially hostile to the process, because one brain is always better than none.
• Your hidden ace is their human nature – i.e. ‘a bird in the hand in litigation is worth more than 2 in the bush!’

• As the Mediator may have said to each side separately in a pre-Mediation Day Zoom call – ‘The outcome of litigation is perhaps even more uncertain and unpredictable than it is in Mediation. That is because a judge will decide and impose the ending. Whereas in Mediation, the parties in dispute will decide how the story ends.’
• So, the outcome in Mediation is more the product of: (i) effective preparation, i.e. planning/calculation; and (ii) skillful negotiation, than it is of luck.
• In Mediation, the possibilities are only limited by the imagination of the participants and their Mediation Advocates.
• Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are invariably possible.
• In the words of the Rolling Stones,

‘You can’t always get what you want
But if you try sometimes, well, you just might find
You get what you need.’

• This requires creative joint-problem solving by all involved in the process.
• In this talk, I will present my ideas about effective preparation and negotiation, i.e. ‘Mediation Advocacy,’ in the creative settlement of a trust/estate dispute.

Subject: ‘Mediation Advocacy in Trust & Estate Disputes.’

Speaker: Carl Islam, Barrister, SCMA Accredited mediation Advocate, CMC Mediator, Author of the Contentious Trusts Handbook and the Contentious Probate Handbook, published by the Law Society, 1 EC Barristers, Temple, London (www.1ec.co.uk & www.carlislam.co.uk).

Slides and Speaking Notes for the talk are now available to view of the ‘Mediation Advocacy’ page at www.carlislam.co.uk. You will also find an updated Research Bibliography on that page.

Structure of the talk:

SLIDE 1 –  First things first! – Understanding P’s objectives & reasons.
SLIDE 2 –  Commercial planning.
SLIDE 3 –  Hidden costs.
SLIDE 4 –  Hidden value & the Interdependence paradigm.
Slide 5A –  Deal-Making Zone (‘DMZ’).
Slide  5B – Visual Representation of the DMZ.
SLIDE 6 –  Offers.
SLIDE 7 –  Negotiation mindset.
SLIDE 8 –  Negotiation strategy.
SLIDE 9 –  Negotiation behaviour.
SLIDE 10 – Conclusion.

Introduction:

In Mediation, the possibilities are only limited by the imagination of the participants and their Mediation Advocates. Whilst not infinite, in my experience, ‘doable’ deals that ‘are enough’ are invariably possible. This requires creative joint-problem solving by all involved in the process.

In this talk, I will present my ideas about the process and negotiation, i.e. Mediation Advocacy ‘tools’, for achieving a ‘creative’ win/win outcome in the Mediation of a trust/estate dispute.

‘There is international recognition that States should assist one another to prevent the unlawful removal of cultural objects including antiquities. … By Article 2 [of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970], the parties recognise that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin, and that international cooperation constitutes one of the most efficient means of protecting each country’s cultural property, and the parties undertake to oppose such practices with the means at their disposal.’ (Iran v. Barakat [2007], per Lord Phillips CJ at: 155, 157).

Subject to five exceptions, the issue of whether a museum in the UK acquired good title to an ancient artefact [‘A’] before it arrived in the UK and was sold or gifted to a museum, will be decided by applying the lex situs, Winkworth v. Christies Ltd [1980]. This is a matter of expert evidence.

One of the five exceptions to the Lex Situs rule is where the foreign law is considered by the English court to be contrary to English public policy, e.g. because it favours a thief, which was posited in the City of Gotha case.

The reasoning of the Judge in The Islamic Republic of Iran v. Denye Berend [2007] demonstrates the application of the relevant principles.

So, the circumstances in which A was removed, appropriated and acquired, are relevant to a claim for an equitable remedy brought in the High Court in London.

If an expert persuades the judge that removal and appropriation was not authorised, and if it had been, that it would have amounted to a violation of international law at the time, then I would submit that the judge may infer that the removal and appropriation of A was unlawful at the time, and therefore that the museum could not have acquired a beneficial proprietary interest in A. That is because the transferor was incapable of passing title in A to the museum under English law. Therefore, the museum holds A in its collections subject to a constructive trust.

This reasoning is also pertinent to the mediation of cultural property disputes. Becuase ‘using interests rather than rights or power to frame cultural property disputes would avoid these problems and would be a more productive way to resolve such disputes. This is the case because, … creativity can create value that meets both parties’ interests.’ (Strother, Grant ‘Resolving Cultural Property Disputes in the Shadow of the Law’, Harvard Negotiation Law Review, 2014, Vol19:335S at pp. 367 – 369)’.

‘There is no such thing as a single, uniform process or set of procedures which constitute a “restitution blueprint”. Nor is there a single, defined goal or endpoint. Rather, responding to a restitution case requires you, the museum, to (re)consider your relationship with objects in your collection, their history, origins and acquisition – and most importantly, the people for whom they may have a special meaning today. Receiving a claim for restitution or repatriation can therefore be seen as an opportunity to learn and reflect, and to connect with people and the collection in new ways. Generally, the experience need not be defensive and adversarial, but can be collaborative and enriching. Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of ‘making mistakes’ which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel.’ (Art Council England – ‘Restitution and Repatriation: A Practical Guide for Museums in England’). 

This is why mediation is approipriate in a cultural property dispute.