Power of Pro Bono Presents: AIRwaves International Restitution Stargazer

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AIR LogoIn this episode of the Power of Pro Bono podcast, UC Berkeley Law students and Arts & Innovation Representation (AIR) members Phillipe de Lathuy and Victoria Bankole dive into the case of The Republic of Turkey v. Christie’s to consider the legal framework of art restitution on the international stage. The students are joined by Leila Amineddoleh, a lecturer at the Fordham School of Law who has represented governments such as the Hellenic Republic of Greece and the Republic of Italy in high-profile restitution cases in recovering stolen art and cultural property.

Episode Transcript

AIRwaves International Restitution Stargazer

Stephanie Arrington: [00:00:00] Hello, and welcome to AIRwaves. 

Ross Moody: AIRwaves is the result of a collaboration between Berkeley Law’s Student-Led Pro Bono Program and California Lawyers for the Arts.

Stephanie Arrington: We are the leaders of this project. My name is Stephanie,

Ross Moody: And my name is Ross. 

Stephanie Arrington: This is a platform where we pursue the most intriguing, pressing and cutting edge topics at the intersection of arts and the law.

You’ll hear conversations between Berkeley Law students and attorneys, experts, and more.

Ross Moody: The contents of these conversations are not intended to be treated as legal advice, and have been reviewed and approved by California Lawyers for the Arts.

Philippe De Lathuy: Hi, my name is Philippe,

Victoria Bankole: And hi, everyone. My name is Victoria, and welcome to our episode on The Republic of Turkey v. Christie’s

Philippe De Lathuy: In the past years, gallery owners and [00:01:00] auction houses in New York, Los Angeles, or Hong Kong have been dealing with a major worry: fear of restitution claims. With the rise of the public debate on restitution of cultural heritage and the evolution of policies related there to, public sales are under ever increasing scrutiny, hereby dramatically increasing the risk of ownership claims. In the spring of 2017, the renowned auction house, Christie’s faced such a claim when offering an iconic artifact for sale in New York.

The day before the sale, Turkey filed a complaint in the federal courts of New York, claiming ownership of this artifact. In September, 2021, the federal district court of the Southern District of New York ruled in favor of Christie’s and the seller of the statue. In the meantime, Turkey appealed the decision.

The final outcome of this restitution case is crucial to gallerists, art dealers and auction houses, as it could dramatically increase [00:02:00] the risk of claims for prospective sales and hereby impair the appetites of the global art market through which tens of millions of works of art are traded every year.

In this podcast, we will go through this case to analyze its factual and procedural background, the three relevant legal issues addressed by the court, and finally, we are looking to the key takeaways for art market together with Leila Amineddoleh. 

Victoria Bankole: Can you imagine a statue standing only nine inches tall being worth almost 14 million dollars? Lucky for us, we don’t have to work that hard to visualize this. The masterpiece at sale at Christie’s was a rare nine inch marble statue of Kiliya-type dating back to 3,000 B.C. This idol, also known as the “Guennol Stargazer,” has roots in Anatolia, which has become modern day Turkey. It represents a human-like yet abstract female figure with a smooth rounded head consisting of very subtle physical features.

It possesses a geometric [00:03:00] structure with its triangular body and fin like arms. This idol is actually part of a larger collection of only 15, very similar statues. All of them feature the head of the idol slightly facing upwards as if they’re gazing up to the stars. Hence the name, “Stargazer.” Around 1961, American private collectors acquired the idol from the Klejman gallery.

Since then this artifact has been highly regarded in the art community, making its fair share of appearances through galleries and museums. In 1966, the collectors loaned the idol to the Metropolitan Museum of Art in New York. The idol remained on loan to the MET for the next 27 years. In 1993, the idol was returned to the owners before being acquired by Judy and Michael Steinhardt in the same year.

From there, the idol was loaned back to the met between 1997 until 2007. Still not convinced that this statue is worth 14 million dollars? Well, this particular Stargazer is actually the finest of its kind. Most of the other Stargazers were [00:04:00] broken at the neck, presumably during rituals. This Guennol Stargazer presents a rare sight of the Stargazer in its complete form.

Max Bernheimer, International Head of Antiquities at Christie’s, stated, this Guennol Stargazer is an iconic work of art and one universally recognized as the finest Kiliya idol in existence. In the spring of 2017, Christie’s announced that its “Exceptional Sale” would include the auction of the Guennol Stargazer, taking place on April 28th, 2017. However, the day before the sale, Turkey filed a complaint in the Federal District Court for the Southern District of New York, claiming ownership of the sculpture. Despite the lawsuit, Christie’s successfully sold the sculpture the next day for $12,700,000. Now let’s move on to describing the case.

Philippe De Lathuy: The Republic of Turkey claimed the return of the statue under a conversion claim and an action for replevin. On a conversion claim, the plaintiff is asking [00:05:00] damages to the defendant that has already sold or otherwise disposed of the artwork. In these claims, a plaintiff must establish its right to possess the property and the defendants’ control over the property, in breach of the plaintiff’s rights to this good.

In an action for replevin, the plaintiff demands to return a specific item of personal property. For this action to be successful, the plaintiff must establish that the defendant is in possession of certain property, of which the plaintiff claims to have a superior right. In other words, the plaintiff must establish its title of property over an item that is currently held by the defendant.

Turkey’s claim rested on two grounds: (1) that the only known workshop to have produced Kiliya type sculptures was in Turkey, and (2) that an [00:06:00] Ottoman decree from 1906 established state ownership of all antiquities, both already found, and yet to be discovered in the future. To be able to address Turkey’s claim. The court was asked to answer three legal issues that often arise in restitution cases. One, what is the applicable law to determine the property title to the statute? Two, has the plaintiff succeeded in proving its property title based on this law? And three, has the plaintiff lost the right to claim the statue under the statutes of limitations or the doctrine of laches?

The above issues are utterly common in restitution cases, whether they are litigated or not. Now let’s dive into each one of them to understand how the answers given by the court could be relevant for prospective cases and, in the end, risk management in the global art market. 

Victoria Bankole: So, what is the [00:07:00] applicable law? Prior to deciding the merits of the case, the court determined under which law it would decide Turkey’s claims, as the case was a diversity action. Instead of raising disputes as to what law applies, Turkey and the defendants agreed that New York law applied to all substantive claims and the affirmative defenses, including the statute of limitations defense. According to this choice of law, Turkey’s claims were based on New York law and therefore, put forward as a conversion claim and an action for replevin. Similarly, the defendants brought New York based affirmative defenses to defeat Turkey, such as statutes of limitations and the doctrine of latches.

However, even if New York law governs the conditions required to the restitution of the idol, the parties agreed that Turkish law would govern the antecedent question of whether Turkey has a property interest in the idol, such that a conversion or replevin claim can be maintained. In particular, the court very interestingly agreed that Turkey could [00:08:00] rely on an Ottoman decree, entered into force in 1906 to show its ownership title.

The applicable provision to determine Turkey’s ownership of the statute, is Article 4 of the 1906 decree that provides: “all monuments and immovable and movable antiquities situated in or on land and real estate belonging to the government, to individuals and various communities, the existence of which is known or will hereafter become known, are the property of the government of the Ottoman Empire. Consequently the right to discover, preserve, collect, and donate to museums the aforementioned belongs to the government”. In accordance with this provision, Turkey was expected to prove that the statue was found within and exported from the boundaries of modern-day Turkey after 1906 to establish ownership under the Ottoman Decree.

Unfortunately for Turkey, the date of the statue’s discovery, excavation, or even export is still unknown to [00:09:00] this date. 

Philippe De Lathuy: So the second question is to know whether the plaintiff succeeded, in proving its property title based on this law. On the merits of the case, the court found that Turkey had not established its ownership of the statute under the 1906 Decree. To evidence that the statue was excavated in modern day Turkey after 1906, Turkey argued that (1) the scope of the trade at the time of production of the statue was too small to expand outside of what is now Turkey. And (2), the statue was then excavated in 1906, or the year of its first sale, as stolen or looted antiquities often arrive quickly on the market, so the chances are very low that the statue remained unknown for more than 50 years. The court rejected both arguments and held that one cannot infer that the idol’s discovery and export occurred after 1906, because the idol first appeared in 1961 and stolen antiquity is often arrived quickly on the market. [00:10:00] In ruling so, the court rejected the rising idea that an artifact is presumed to be acquired illegally or under various degrees of power differences in these regions unless one can establish its title.

Despite rejecting Turkey’s arguments, the court assessed whether the plaintiff lost the right to claim the statue under the statutes of limitation or the doctrine of latches. On that question, the court found that Turkey had no right to recover the Stargazer Statue, as it has slept on its rights. In finding so, the court relied on the doctrine of latches rather than the statute of limitations. This doctrine is an equitable defense that protects defendants against unreasonable prejudicial delay in commencing suit. A defendant asserting a latches defense must show that the plaintiff was aware of its claim, but has inexcusably slept on its right so that granting the claim against the defendant would be unfair. Here, the court recognized that [00:11:00] Turkey should have known of its claim decades before 2017, when it finally initiated its attempt to recover the idol. The idol was widely discussed in the literature, including Turkish publications, by academics, with connections to the Ministry of Culture, starting in the 1960s.

In addition, it was in near constant display at the Metropolitan Museum of Art for decades, one of the most visited museums in the world. Finally, the court founded Turkey’s failure to take any steps to even inquire as to the origins of the idol, how it made its way to New York, and whether it had any potential claim was probative of inexcusable delay.

Victoria Bankole: And that’s what we currently know about the Republic of Turkey v. Christie’s. While the outcome of this case is subject to an appeal by the Republic of Turkey, this case has benefited from a widespread media coverage, as it entails some key lessons for the art market and future restitution cases. To [00:12:00] tell us about this decision and this fascinating case is our guest, Leila Amineddoleh. Leila Amineddoleh is a Partner and Founder of Amineddoleh & Associates, a New York based law firm providing premier legal services to individuals, art institutions, nonprofit organization, and businesses on art, cultural heritage, and intellectual property matters. She’s.

She also represents American museums and collectors in responding to claims. Being at the forefront of international cultural heritage law, she regularly publishes in academic journals and has been quoted by the New York Times, Time Magazine, The Guardian, The Art Newspaper, and other news channels. We are delighted to have the opportunity to [00:13:00] ask you about the Stargazer case today.

Leila Amineddoleh: Thank you for inviting me to speak about this really interesting matter. 

Victoria Bankole: Thank you so much for being here today, Leila. Could you tell us a bit about what you’re currently working on?

Leila Amineddoleh: I think you summed it up pretty well. We handle a variety of matters all in the area of art, cultural heritage, and intellectual property law. And we represent a wide variety of clients as well, including art collectors, dealers, museums, auction houses, foreign governments, art experts, and startups. So we have a, we really enjoy our work working in this field. 

Victoria Bankole: As you know, the Republic of Turkey v. Christie’s was initiated one day before the sale of the Guennol Stargazer in the spring of 2017. Before starting this litigation, Turkey had only asserted its rights to the idol once in a letter to Christie’s. What alternative dispute resolution mechanisms do you think Turkey could have considered before initiating these proceedings? What are the advantages and [00:14:00] drawbacks of such mechanisms and how would you explain that Turkey did not resort to these mechanisms? In general, what would you say are the limitations of deciding restitution claims in a court forum?

Leila Amineddoleh: I think here that Turkey didn’t really have many non litigious means available to the country. Um, there was a great deal at stake here. It was known that this object would bring in huge amount of money to Christie’s and to the consigner. The object was so important and so rare that it was even featured on the catalog of The Exceptional Sale at Christie’s in April, 2017.

So with so much at stake, I think it would’ve been very difficult for Turkey to advance negotiations. And I know that there were discussions that took place between the auction house and Turkey, but they obviously were not fruitful. But I think when there’s so [00:15:00] much value at stake and also when something is so public, I think it’s really difficult to engage in negotiating in alternative dispute resolution, because I think parties clearly are kind of more stuck in their stance, in their, you know, in their view. of how something should be resolved. In addition, I think Turkey also didn’t have law enforcement available to it. You know, there have been cases with other auction houses and foreign governments where, let’s say, a U.S. Attorney’s office or a district attorney’s office would step in because there was clear evidence that a work was stolen and law enforcement wants to act quickly to seize an object and once the object is seized and the parties engage in litigation or negotiations, and here that didn’t happen. And I think it would’ve been really difficult for Turkey to, let’s say, entice law enforcement to act because this [00:16:00] work had been in the public for so long, the work had been on display at the Metropolitan Museum of Art for decades. It had appeared in publications. And I know that you, you know, discussed this earlier in the podcast, but the work had been available for the public to see and for Turkey to discover for decades before this sale.

And because of that, I think it would’ve been more difficult to have law enforcement to come in, and seize the object and perhaps lead this dispute in a different direction. I know you had other parts of questions that you mentioned. I just can’t remember them now. 

Victoria Bankole: I think you did a good job on touching on the earlier questions, but I will ask a follow up. What would you say in general are the limitations of deciding a restitution claim in court?

Leila Amineddoleh: Restitution cases are very difficult to litigate, in part because of lack of evidence. And I think that’s especially true with antiquities. There’s a challenge with antiquities that if you are asserting that something [00:17:00] was looted, generally, there’s no paperwork that follows these objects. You know, they haven’t been excavated properly, recorded properly, perhaps they haven’t been photographed. They haven’t appeared in publications. So it’s really hard to trace back where an object was taken from and when, and that is a really big challenge.

And of course we have some really interesting and fun cases that involve looted objects in which there is a record. So, you might be familiar with the case of U.S. v. Schultz involving a New York dealer and a British conservator / looter, and they ended up well, the, the British man, Jonathan Tokeley Parry ended up writing in a journal all of this information about the objects that were looted, how they were removed, how they conserve them. So prosecutors, in that case, had wonderful evidence to prove that the objects were illicitly removed from [00:18:00] Egypt, but most cases do not involve malfeasors writing down their acts. Most people don’t admit in writing that they looted something. I think that’s really the challenge with antiquities and I think that’s why there are so few of these cases that are actually brought in court. And that’s why this case is so important because there really aren’t many of these cases that are litigated each year.

Victoria Bankole: So, what would you say would be a better method? I know earlier you mentioned getting law enforcement involved to help seize the artifacts. Do you think methods like that would be more productive in actually getting results in these restitution claims? 

Leila Amineddoleh: I think there’s some really wonderful examples of negotiating and collaborative approaches and one of my favorite disputes and say, it’s not a case because it was never litigated, was the controversy over the Euphronios Krater and there, Italian law enforcement and the Italian government stepped in once there was enough [00:19:00] evidence to show that that object had been looted. The parties negotiated then the Italian government never sued the Metropolitan Museum of Art, but rather presented them with evidence and demanded that they returned the Krater, and when the MET did so, the parties had come to a settlement in which the MET was able to receive access to loans from Italy and really this cooperation.

So that really is ideal. Well, the problem again is when there’s a lack of paperwork, it’s really hard to force the other party to come forward and to cooperate and actually like negotiate in good faith. I think it’s really challenging. Anyone working in the, you know, antiquities market or the cultural heritage realm, whether that’s in law, in law enforcement, through an institution, a selling institution or collecting institution, I think there are just challenges with the lack of [00:20:00] paperwork. And it’s not just for the, the government. It’s also with collectors as well. I’m seeing this, and I know it’s a little off topic, but I’ve even seen this with collectors who perhaps have purchased something in good faith, but didn’t know enough to get the paperwork or didn’t know enough decades ago to get those papers and are, you know, kind of now stuck with objects that are difficult to sell. So I think anyone working in antiquities faces challenges. 

Philippe De Lathuy: I did have a question on that because I thought it was very interesting that you talked about the creator that was brought back from the MET to Italy and objects being loaned back to the MET. I was wondering, have you seen these kind of loans being integrated into agreements for the return of artifacts?

Leila Amineddoleh: Yeah. There are a number of instances in which these loan agreements have been successful, not just for antiquities, but also with fine art. So you’ve mentioned that I, I [00:21:00] teach a course at Fordham Law School and in fact, Fordham has a museum and Fordham had a wonderful agreement that was put into place a number of years ago for an artifact, I believe it was an, Etruscan artifact. Um, the Italian government had stated that it was that it was looted and the university cooperated with Italy, uh, returned title to Italy, but the Italian government allowed Fordham to hold onto that object and to use it in its teaching museum. It’s a museum that students have access to. And I think that was a really cooperative approach. And I think a number of institutions have followed this approach. I know that when the Euphronios Krater was returned from the MET to Italy, there were other institutions that followed that example, including the MFA in Boston. I know the Getty has had some agreements with Italy and Greece too, I believe, but there were a number [00:22:00] of institutions that cooperated with the Italian government at that time. 

Philippe De Lathuy: Interesting. And I think that it happened just a couple of days ago after Italy announced that it would return some fragments of the Parthenon, Greece just agreed to loan some objects as some form of recognizance.

Victoria Bankole: So going back a bit to the Stargazer case one thing that we found very interesting about this case was that Turkey also named the idol itself as a defendant in the case. So we’d love to ask you how does an object become a defendant in a case and what are the advantages and drawbacks of such a case in rem?

Leila Amineddoleh: One of the reasons that parties will file in rem proceedings is that there’s a lack of information, like about the identity of the owner or, you know, the other party. So that may have been one of the reasons that Turkey decided to file a suit in rem because at the time that the suit was filed, I believe that Turkey didn’t know [00:23:00] the identities of the consigner or the winning bidder. So I think it was kind of necessary to do that due to the lack of information. Another reason that parties file in rem filings is that it allows them to constructively seize property. 

Philippe De Lathuy: Thank you very much for this answer and I’ll take it away now for the last questions. So the outcome of the case shows that certain legal principles such as the burden of proof continue to apply in restitution cases, despite the rise of a movement towards ethical considerations that would overcome legal barriers. For example, we have seen a tendency among the public to assume bad faith and fault on the part of Western art owners that in turn would reverse the burden of proof on them. Such line of argument was followed by the Turkish government in this case. Turkey inferred that the idol was found soon before it appeared for the first time in 1961, because looted [00:24:00] antiquities often arrive quickly on the market.

As we know, the court rejected these arguments. The quote was convinced by Christie’s inference that the objects could also have been traded outside of modern day Turkey as they showed existence of trade between these two regions in early days of the crafting of the statute. So how do you think this particular decision could affect the art market and a growing demand by states and communities for the return of artifacts?

Leila Amineddoleh: So that’s a long question with many subparts and I have a number of thoughts, but the first thing I’d like to address is this divide between ethics and a legal determination. But just because a court may find for a party based on precedent and legal principles doesn’t mean that that outcome is ethically correct or satisfying in any way. And I think we’ve seen this in many cases outside, even outside the scope of [00:25:00] antiquities litigation. And I think this often comes up in cases involving Nazi era looting as well, where a court might not find for a claimant due to that lack of evidence or statute of limitations or latches. And I think those outcomes are often unsatisfying from an ethics perspective.

 I think a really good example of that, I gave it a talk about the case last year, was Philipp v. Germany, which was a case that went to the Supreme Court that involved an alleged taking by the Nazis and the court ruled that there just wasn’t jurisdiction over Germany. And I, I think a lot of people watching that case thought it was ethically unsatisfying because the claimants never really got their day in court to prove whether or not there was a taking, whether the objects were sold under duress, and you know, to have that justice. [00:26:00] A lot of people were really unhappy with that decision. But I think there was this divide between ethics and those considerations and really looking at legal precedent. And as far as the legal precedent is concerned, I think the Supreme Court had got it right and it was unanimous decision. I think it was clear. But even for me who I was, I really. I thought that the Supreme court had it right, it would’ve still been really satisfying to see the case move forward and to see it move through a trial where evidence would be presented and a determination could be made. So I just like to bring that up, that there sometimes is that divide between ethics and the law and our legal system and these burdens of proof.

Here in terms of the case and the court’s determination, I don’t think there was anything particularly surprising in the court’s discussion, except for one item that I know we’re gonna address later in the talk [00:27:00] about the Ottoman Decree. But I think that the court’s decision of this case was very much in line with federal court decisions that came prior, and requiring that a claimant, whether it’s a foreign country or an individual, that that claimant does have to prove that an item was stolen or that it was taken in contravention of an ownership law, which in the eyes of the court is the equivalent to a theft.

So I think we have to also recognize this divide between litigation in the court system and private engagements or private discussions and negotiations and ethics in the art market. While participants in the art market may be involved in these discussions about new frameworks for repatriation and restitutions. And we’re seeing a lot of that, especially during the past few years with discussions about colonial era takings [00:28:00] and just really kind of new ways to look at the trade historically. While I think those discussions are taking place within the market, the courts are really bound to precedent and to looking at laws and burdens of proof.

So I think parties have that opportunity to engage in discussion outside of the court, the structure of like a litigation outside of a trial, but the court isn’t necessarily concerned about that. And as I mentioned earlier, the lack of paperwork, the lack of evidence, may encourage people to use other frameworks to go through ADR, to have these negotiations, to find ways to resolve their disputes, like with long term loans, collaboration, joint publications, a lot of factors can, or a lot of different items can be included in a negotiation. But in a case [00:29:00] like this, I think it’s really a challenging, as I said before, the price was so high and we don’t know when the object was removed from Turkey. So unfortunately, negotiations didn’t move forward. Cause I think a negotiation could have led to an outcome that would have been more satisfying for people. Instead, the parties went through four years of litigation, very costly, very time consuming, and it’s continuing today. I often encourage clients to consider solutions besides litigation. In addition to kind of that ethical concern that a court’s decision might not be in line with personal ethics or the ethics of the art market, there’s just so much uncertainty in a litigation and so much cost and courts make mistakes. I mean decisions are overruled or overturned. So [00:30:00] often I think parties do try to avoid litigation. 

Philippe De Lathuy: I think it’s very interesting that you bring on the whole evolution in this discussion regarding colonial artifacts, which is not the topic of this podcast, of course. 

Leila Amineddoleh: Well, there’s a tie here, right? Cause like the Ottoman control and there’s definitely a tie to this. And I think that’s why, which we’ll talk about, I think the 1906 Ottoman Decree is so interesting. 

Philippe De Lathuy: In this case, the court found that the Turkish government had slept on its rights and was guilty of inexcusable delay in asserting its rights to the Stargazer statue. The court found that Turkey should have known of its claim decades before 2017. So my first question on this, now we’ve been talking about the doctrine of latches in this podcast earlier, could you maybe explain what the doctrine of latches entail?

Leila Amineddoleh: The doctrine of latches requires that a party take action in a timely manner. The court will look at two prongs in determining if you [00:31:00] know that doctrine applies. One is that a party inexcusably delayed filing a lawsuit and filing suit. And if that delay had resulted in prejudice to the parties, and often we look at prejudice as lack of evidence, the death of key witnesses, it’s a way to encourage parties to file cases in a timely manner and to ensure that a court can actually, you know, review cases and review the evidence without the loss of important information. 

Philippe De Lathuy: Right. And this doctrine has been applied in this case. Does this mean that to succeed, claimants are required to act quickly and that failure to do so will be fatal to the claim?

Leila Amineddoleh: Latches is a fact specific inquiry. It’s not necessarily that claimants have to act quickly. It’s that, well, they have to act quickly after having access to the information. So I don’t think the court’s reliance on latches was surprising at [00:32:00] all here. I anticipated that was what the court would look at and I think when I had originally read some of the filings back in 2017 or 2018, Christie’s brought up latches very early on. And I think the court’s determination of latches was really foreseeable because there was an opportunity for Turkey to discover the whereabouts of the object decades ago. The work was in one of the world’s most visited museums, if not the most visited, isn’t the met like the first or second most visited museum in the world? So it had been there for decades and in addition to that, it had been, as you noted, it had been featured in a number of publications, in fact, publications that were written by Turkish academics, so, and academics that had a tie to the Turkish Ministry of Culture. So I thought as I was following the case, cuz I had been following it since [00:33:00] 2017, I anticipated that that would be really Christie’s strongest argument, that Turkey just waited too long. You know, it’s unfortunate when you look at a court’s decision. Yeah. Turkey waited too long, but then we also have to consider practicalities as well.

 What are these governments doing? What are they using their budgets for? What objects are they pursuing? What cultural projects are underway? What are they putting their budget to in terms of buildings and maintenance and security of sites? So perhaps, going after or making claims for an object in a museum might not be the number one priority for a government. And I, since I worked with foreign governments, I’m very cognizant of that. The fact that it’s not so straightforward with the government, they are thinking about budgets and funding and what objects they’re going to pursue. You can imagine there are thousands of objects around the world [00:34:00] that may have been removed illicitly. So I think we have to look at the whole picture, which is why I think some of these foreign governments are really sympathetic that they’re not able to pursue every object. And perhaps when the object went for sale at auction and it was on the front cover of the catalog, it kind of raised the interest of Turkey, or at least, you know, brought this to the forefront or the, like the top of the priority list. So I think we have to think about that as well. I think when we look at the court’s application of the latches claim, I think it was a pretty straightforward application because the Stargazer had been in a very well known public institution for decades, and there were many publications about it. And that delay in bringing a claim, I could see that it’s prejudicial to the buyers, to, to Christie’s and the previous buyers, because any evidence about how that work came onto the market in 1961 is likely gone. [00:35:00] Any party to that initial transaction has since passed. So I think it was a pretty straightforward application of latches.

Philippe De Lathuy: Right. Thank you very much for explaining the whole conditions for the doctrine of latches. I think it helps to understand how the court applied it. I think that Christie’s brought up the statute of limitation but that they were not upheld by the court, I guess, mainly because of the demand refusal rule. I was wondering if you maybe could explain how the doctrine of latches in New York, and in this case, relates to the demand refusal rule of the statutes of limitation. 

Leila Amineddoleh: Sure. So with the statute of limitations in New York, we follow the demand and refusal rules. So once Turkey makes a demand for return and Christie’s had refused, then the statute of limitations begins to tick. So that would mean that Turkey would have three years to file a case and be within that statute of limitations. However, that rule is very protective of a claimant. So courts have tempered that [00:36:00] rule with latches. So it encourages claimants, you know, plaintiffs to make a claim sooner rather than later, and not sitting on the rights because, as we already had mentioned that, if you wait too long, then there is loss of evidence and that could prejudice someone. So really the court uses latches to temper the demand and refusal rule. 

Philippe De Lathuy: On the other hand, the court also recognized that a state may base its claim for restitution on the Patrimony law, which was enforced prior to the existence of the state in question. Was this recognition a surprise for you? 

Leila Amineddoleh: Yeah. Yeah, that was the most surprising thing about this decision. I think it was really the only surprise for me in this decision. And it’s incredible because courts have looked at patrimony laws and have enforced them as ownership laws that are enforceable in U.S. Courts, but they’ve really looked at laws that were [00:37:00] passed by the nation by like, the modern nation. And here the courts look to a rule that was passed under the Ottoman Empire, before the formation of what we know of as, as modern Turkey.

So, so I have huge ramifications first off, I think about other countries, current countries, that were under Ottoman rule. And one of the first countries that comes to mind is Iraq and all of the objects that were removed from Iraq under Ottman rule that were removed perhaps in contravention of this Ottoman rule. So I think that as a result of this case, we might see other cases involving Turkey or other countries under Ottoman rule. And even more broadly than that, I think that this may allow other countries under other colonial powers to bring cases. And one country that comes to mind is Cambodia,[00:38:00] and looking at France’s law to protect objects that came from Cambodia. The Cambodian nation has been very active recently in making claims for repatriation. So it will be interesting to see if the Cambodian government looks to these laws to enforce ownership rights. So it definitely signals the kinda the receptiveness the court has to look at objects and look at ownership issues even further back in time. It would be interesting to see actually what the appeals court says about that. What will the second circuit say? Will they reject that reasoning? Will they reject the court’s rationale there? Will they further expand upon it? This is a really important case to watch. And I think the filing in this case, the appeals brief by Turkey was just filed last month. So it’s gonna take some time, but [00:39:00] I’m really looking forward to the court, making a decision.

Philippe De Lathuy: Do you think that, you know, they tried to attack Steinhardt’s good faith and rely on what happened after? 

Leila Amineddoleh: A lot of people in the art world have known about Michael Steinhardt’s problematic purchases, even prior to the very high profile seizure that the D.A. had announced in December. There were other cases involving Steinhardt dating back to the nineties. So. I think that a lot of people, and I know many of my colleagues were really disappointed when they read the district court’s decision in terms of Michael Steinhardt, because a lot of people know that he’s a really careless type of collector. He takes many risks and that he’s been involved in the purchase of looted objects. And people have known this for decades now. It became a little bit [00:40:00] more high profile in December when the D.A. announced its seizure and the return of 180 objects to various countries, including Turkey. So people were really upset when they read the court’s decision that Michael Steinhardt was a good faith purchaser. I think that just really rubbed a lot of people the wrong way. 

Philippe De Lathuy: Do you think that the fact the Stargazer was on display in a museum also could have potentially refrained the D.A. from seizing it?

Leila Amineddoleh: Yeah, probably. Although, you know what? I was involved in a case with Michael, it was a Steinhardt case and the D.A. and it was a work that was on display at the M.E.T. And the D.A. seized it from the M.E.T., although it was very different, had been at the M.E.T. for like a year on loan and someone in the M.E.T. Was like, hey, we think it’s looted, what should we do? So definitely different facts, but the D.A. has seized objects from the M.E.T. but I think it’s a time period that makes it different. Cuz the D.A. also seized a golden coffin and returned it [00:41:00] to Egypt. But again, that was like within the year that it went on display. Here, it was decades. 

Philippe De Lathuy: In this case, the Stargazer would come back to the seller or the consigner, which is Steinhardt. Do you think that there would be an impact on the price of the Stargazer if it’s put back on sale?

Leila Amineddoleh: Oh, yeah. Yeah, always. When something’s been through a litigation and there’s an ownership determination made by court, that’s like amazing provenance. Having a court order stating that you are the rightful owner always increases the, the value of the work. 

Philippe De Lathuy: Wow. I would have expected it to be decreased. 

Leila Amineddoleh: So if there’s no determination on ownership and someone’s scared about owning it because they could be sued later on, definitely the price would go down. If let’s say there was a dispute, it was in the public realm, people knew about it, but a determination hadn’t been made, then I’d be very scared of buying something. And I think [00:42:00] most collectors would be. However, if a work has gone through a litigation or, you know, if a work has been sub the subject of a litigation and ownership claim, then a court is basically saying you are the right owner. We made an ownership determination, and that goes along with the provenance. It definitely increases the value. 

Victoria Bankole: Thank you so much for joining us today, you really helped us shed some light and offer some perspectives that we wouldn’t have gotten otherwise. So thank you so much. 

Leila Amineddoleh: Cool. Well, uh, thank you and thank you for inviting me. 

Victoria Bankole: Wow. This was such an illuminating discussion. Thank you all so much for joining us today. We hope you learned as much as we did. 

Philippe De Lathuy: And if you are as excited as we are, don’t forget to look out for the outcome of this case.