Jennifer Kreder – 2009 ILS Vienna Retreat Speaker Summary
Nazi-looted art has been the subject of much litigation recently and many news reports. In particular, many of the recent claims arise out of events that occurred in Vienna, Austria, the site of our conference, in the aftermath of the 1938 Anchluss of Austria into the Third Reich. Given both the vast magnitude of unrestituted Nazi-looted art and the revival of research into newly opened World War II-era governmental archives, the rise in interest in Nazi-looted art is not surprising even though sixty years have passed since the end of the war. Professor Jennifer Anglim Kreder of Chase College of Law at Northern Kentucky University explained the history and evolution of claims to artworks displaced during the Nazi era. She has been working on and studying Holocaust litigation since 1999, with a particular emphasis on art claims.
Early claims filed after the war concerned direct looting of art by Nazi officials or American G.I.’s and was filed by claimants against American collectors who purchased the art in New York. In the mid 1990’s, partially as a consequence of the expiration of the London Debt Agreement signed by the U.S. shortly after the war, there was an explosion of Nazi-era claims seeking compensation for undisclosed bank accounts, gold, slave and forced labor and other issues. Then, two key books were published in 1997 and 1998, Hector Feliciano’s The Lost Museum and Lynn Nicholas’ The Rape of Europa, respectively. For the first time, knowledge about the extent of Nazi looting extended beyond the museum and dealer community to the general public. The Association of American Art Dealers issued guidelines for handling Nazi-era art claims, which were mirrored in the Washington Principles signed by forty-four nations. They called on museums and governments to resolve claims in just and fair ways according to the circumstances, which contemplated waiver of statutes of limitations to resolve claims on the merits. Pressure exerted upon governments forced the opening of archives; survivors and their heirs began to research potential claims at great expense; and claims were filed. Three particular issues make such cases difficult to litigate: (1) the need to establish the factual circumstances of the loss of the painting half a century ago, including its identity and whether it was subject to theft or forced sale, (2) choice of law issues that may provide a bona fide purchaser with defenses under civil law, and (3) statute of limitations and laches doctrines.
The current wave of claims is fleshing out the exact parameters of what should be considered a “forced” or “duress” sale. Whereas the early cases typically involved clear-cut theft or looting, many of the newer cases involve paintings sold by Jews without being subject to a Nazi decree particular to the person or the painting. They seek to restitute paintings sold as a general consequence of economic pressure resulting from Nazi discriminatory policies, such as the need to pay an extortionate tax to flee the country. Five U.S. museums have responded by filing declaratory judgment actions to quiet title and defeat the claims before they are even filed. Although it is important to realize that not every claim is meritorious, we are a far way from the spirit of 1998. Nations will again meet in June 2009 in Prague to revisit the Washington Principles.