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?