US embassy cable - 03THEHAGUE1390

UNCLAS THE HAGUE 001390 
 
SIPDIS 
 
STATE FOR OHI 
 
PARIS ALSO FOR USREP UNESCO 
 
E.O. 12958 N/A 
TAGS: KNAR, PHUM, AORC, NL, IBPCA 
SUBJECT: HOLOCAUST ART RESTITUTION: SEMINAR EXPLORES ROLE 
FOR INTERNATIONAL ARBITRATION 
 
 
1.  Summary and Action Request:  The Permanent Court of 
Arbitration hosted a seminar to explore whether 
international arbitration is a suitable mechanism for 
resolving claims involving Nazi-looted art.  Legal experts 
agreed that arbitration could play a useful role and some 
advocated establishment of a standing arbitral body to 
handle such disputes. Art historians stressed that support 
for high quality archival research was a key element in 
establishing provenance and resolving claims.  The PCA will 
convene a small working group of interested legal experts to 
consider next steps.  The PCA would welcome the 
participation of a USG expert in the process should we wish 
to identify one. We would appreciate guidance on how to 
respond to PCA's invitation for USG participation on the 
working group.  End Summary 
 
2.  The Hague-based Permanent Court of Arbitration (PCA) 
brought together international legal experts and art 
historians on May 23 in a seminar to discuss resolution of 
cultural property disputes.  The purpose of the seminar - 
which focused on claims associated with Nazi-looted art - 
was to identify the key issues in resolving stolen art 
claims and consider whether international arbitration 
mechanisms could play a useful role. 
 
3.  Several of the legal experts (including Owen Pell of the 
law firm White and Case and Hans Das of the Catholic 
University of Leuven) argued that national dispute 
settlement measures are inadequate as they often turn on the 
sheer happenstance of where the art has come to rest - with 
some jurisdictions completely precluding recovery.  Legal 
experts were also confident of finding acceptable ways to 
bridge systemic differences between countries with civil law 
and common law systems regarding issues such as evidentiary 
standards, burdens of proof, and applicability of 
purchasers' good faith.  These legal experts suggested that 
a standing arbitral body modeled on that modeled on the Law 
of the Sea Convention could play an important role in 
resolving Holocaust and other stolen art-related disputes. 
 
4.  Some conference participants were not convinced that 
establishment of an international arbitration mechanism is 
necessary or worthwhile.  While not directly conveying these 
misgivings during the public sessions, they told us on the 
margins that most cases are being adequately handled through 
national or alternative dispute settlement mechanisms and 
that only a handful of cases would ever be referred for 
international arbitration. 
 
5.  Art historians underscored that a relatively complete 
accounting of World War Two-era looted art can only come 
about through more extensive and higher quality archival 
research.  This requires familiarity not only with the 
location of relevant archives but their organizational 
structures and recordkeeping quirks.  Extensive online 
databases, one historian noted, are of limited value because 
of the inconsistent and imprecise manner in which individual 
works are described and recorded.  Several historians noted 
the specialized nature of provenance research and that only 
a handful of people currently have the training and 
background.  They also cited European privacy laws as 
obstacles to tracking down looted art and establishing 
provenance. 
 
6.  Comment:  Although the PCA has not taken an 
institutional position on whether international arbitration 
is a suitable mechanism for resolving claims involving Nazi- 
looted art, PCA officials have determined that additional 
work to explore this possibility would be valuable.  PCA 
General Counsel Freedburg noted that the PCA intends to 
convene a small working group of experts to consider next 
steps and indicated that the group would include experts 
from American law firms and art museums such as the National 
Gallery of Art.  She said the PCA would welcome the 
participation of a USG expert in the process should we wish 
to identify one.  End Comment 
 
Sobel