‘Practical Ethics’, i.e. the moral case for the return of stolen art, has legitimacy and persuasive force as an argument in Mediation because it is linked to moral hazard, i.e. the reputational risk to a museum of possessing stolen art. Consequently, in Art and Cultural Heritage restitution disputes, Mediation is a norm. To an extent, The same applies to Art Authentication disputes i.e. about a ‘Sleeper’. A sleeper is an artwork or antique that has been undervalued and mislabelled due to an expert oversight, and was therefore undersold at auction. The Auction House’s misattribution is printed in the sale catalogue as well as displayed on its website, communicated to potential clients and to those attending the sale. Consequently, the art object is introduced into the public art market under a wrong label. At trial, the court will apply the preponderance of evidence standard to determine liability. The judicial function is not to find an absolute truth but merely a preponderant truth. Judges generally lack the connoisseurship to endorse an expert’s judgment by eye, i.e. they must rule on questions of art authenticity by relying upon expert evidence, without having the requisite skill and knowledge to evaluate and critically assess scientific and opinion evidence. Consequently, in a misattribution dispute, instead of rendering a judgment based upon the experts’ arguments substantiating a specific attribution, a judge may decide that a specific expert is more eminent and established, and consequently that expert’s attribution will prevail. In a breach of duty claim against an auction house, the diligence test applied by English courts is based upon a fiction – the reasonable auctioneer who uses adequate care in the execution of his duties and obligations. This has two drawbacks. 1st – when no expert consensus existed at the time of a wrong attribution. 2nd – the circularity and contingency of scholarship, exposing attributions to divergences amongst scholars and to continuous change. Unless under the terms of settlement agreed at Mediation the parties in dispute agree upon an attribution that can be made public, the problem of disputed attribution does not go away. Therefore, for the parties in dispute, the issue becomes, ‘What is the price of doing a deal?’
I am studying at the Institute of Art & Law in London for a Diploma in Art Law. The titles of my 3 Diploma essays are:
– ‘The moral case for restitution.’’
– ‘Fiduciary Duties of Trustees of Art & Cultural Heritage Assets’
– ‘A Fiduciary Theory of Art.’
See the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com.
My Tutor at IAL’s, Alexander Herman (who was recently appointed Director of the Institute), has written an excellent book about ‘Restitution.’ On Saturday I contributed a review – Google – ‘Herman – Resitution – Amazon books.’ If you want to understand the ethics of restitution, I recommend this book.