Tuesday, July 1, 2008

Good Faith, Due Diligence, and Market Activities

Recently, I have been taking note of the use of the term “good faith” and particularly how the term is used by opponents of import restrictions on antiquities that do not have proper documentation, repatriations of looted material, and advocates of a “free-market” in ancient objects.

Yesterday, David Gill reported that a relief fragment from an Egyptian tomb was repatriated to Egypt after it had been withdrawn from a sale at Bonhams (London) earlier this year, when someone from the Metropolitan Museum of Art recognized it from an Egyptian tomb, where it was once in situ (“Tomb of Mutirdis (TT410): Update,” Looting Matters, 30 June 2008). A spokesperson for Bonhams would not identify the individual or dealership from whom they acquired the object, but stated that it appeared to have been acquired in "good faith."

Also on David Gill's weblog, and elsewhere, there has been discussion of the Association of Art Museum Director's (AAMD) new guidelines for the acquisition of antiquities ("AAMD and Antiquities: a Revised Position," Looting Matters, 5 June 2008). In light of this, he has recently discussed the use of a 1970 vs. 1983 date in response to Lee Rosenbaum, who suggested the 1983 cutoff date for repatriations (D.W.J. Gill, "Towards a Ceasefire in the 'Antiquities Wars': a Response to Lee Rosenbaum," Looting Matters, 26 June 2008; id., "The 'Antiquities Wars': Further Thoughts," Looting Matters, 27 June 2008; L. Rosenbaum, "Towards a Ceasefire in the Antiquities Wars: The Next Step (Part I)," CultureGrrl, 25 June 2008; id., "Towards a Ceasefire in the Antiquities Wars: The Next Step (Part II)," CultureGrrl, 27 June 2008). Peter Tompa, current president of the Ancient Coin Collectors Guild (ACCG) and an attorney, has also weighed in on the debate ("Memo to AAMD Members: Pick 1970 or 1983 as a Trigger for your Cultural Property Returns," Cultural Property Observer, 26 June 2008). While Gill and Rosenbaum prefer different dates based on various legal and ethical precedents, 1970 (as per the 1970 UNESCO Convention) and 1983 (as per US legislation subscribing to the UNESCO Convention via the Cultural Property Implementation Act (CPIA)), respectively, Tompa suggests that repatriations be based on the date that a foreign nation's request for import restrictions on cultural property is recognized by the U.S. Department of State be used as the guideline. He also makes the statement early on that "Repatriation decisions should never be taken lightly, particularly when lack of provenance information does not necessarily mean lack of good faith."

Last week, it was brought to the attention of the Iraq Crisis Discussion List that some rare Iraqi Jewish books were smuggled out of Iraq and traded in Israel ("Rare Iraqi Jewish Books 'Surface in Israel,'" Yahoo! News, 27 June 2008). There has been a protracted discussion on the Iraq Crisis Discussion List, to which many have contributed, including Jeff Spurr, Dorothy King, Paul Barford, Michael Balter, John Robertson, Patty Gerstenblith, Donny George, Peter Tompa, and others (visit the June and July archives to view individual contributions to the thread). Mr. Tompa and Mr. Barford have both blogged about the discussion and pertinent issues (P. Tompa, "Jewish Books Smuggled from Iraq to Israel," Cultural Property Observer, 28 June 2008; P. Barford, "'Stuff Happens': US 'Torah Rescue' from Iraq?" Cultural Heritage in Danger (SAFECorner), 30 June 2008). In regard to a related issue on these Iraqi Jewish books, Tompa again brings up "good faith": "In any event, the Torah described in the article would not easily fit into either category so I think we must assume (unless proven otherwise) that all concerned have acted in good faith."

It was also reported this month that a Norwegian soldier who served in Afghanistan attempted to donate a hoard of coins and an ancient bottle he acquired there to a museum in Oslo and that Afghanistan is now seeking the return of the illicitly exported - and probably looted - material (N. Berglund, "Afghanistan Seeks Return of 'Stolen Treasures,'" Aftenposten: News from Norway, 18 June 2008). Dorothy King provided a short discussion of it on her blog ("A Little Afghan Looting...Updated," PhDiva, 23 June 2008). In the comments section of this post, Peter Tompa commented:

"This soldier should be given the benefit of the doubt. It is likely he bought these artifacts in good faith from desperately poor farmers who found the material, and I will assume this to be the case unless and until someone proves otherwise. This only became a story when the archaeological blogs picked it up. I suspect they helped egg on the Afghan Museum authorities to demand the repatriation of this material and an investigation. Before the Communists and Taliban took over, the government tolerated sales of minor artifacts such as this. A change of sensibilities in the elites that run the archaeological establishment, will not change the facts on the ground. Desperately poor farmers will sell whatever they find to whomever will buy it. Better to put in some system akin to Treasure Trove, that records everything, rather than assume Afghanistan has the funds and archaeologists necessary to conserve every piece of ancient history in its museums."

A comment by Sebastian Heath in response to Tompa on the same entry is worth reading as well as his "Say What?" Mediterranean Ceramics, 23 June 2008.

The purpose of this post is not to "slam" Mr. Tompa. I have respect for him and he uses more discretion and reason than many of the dealers with whom I have tried to have discussions in the past (to be clear, Tompa is not a dealer, but rather a collector). Instead, I am trying to highlight a fundamental difference in perception and argumentation that people on different sides of the "antiquities debate" have. Tompa, for example, seems to present the notion that "good faith" and "the benefit of the doubt" are enough for the trading of antiquities. On the other hand, David Gill, among others, have argued the need for stronger "due diligence" processes in the acquisition of antiquities by dealers, collectors, and museums.

In the early spring of 1999, a 60 kilogram parcel of ancient coins, which was only part of a larger shipment, estimated to be in the neighborhood of a ton (literally), was intercepted at Frankfurt Airport (R. Dietrich, "Cultural Property on the Move - Legally, Illegally," International Journal of Cultural Property 11.2 (2002): 294-304). The coins were falsely declared and were spirited out of Bulgaria and destined for sale in the United States. The Bulgarian national was and still is an active coin dealer and wholesaler to other dealers in the United States. Online correspondence on ancient coin discussion lists indicate this dealer was selling coins en masse to other dealers and collectors at a major North American coin show just a few months after customs officials released the parcel under peculiar circumstances (see the article for fuller discussion of the release from customs). Many collectors were excited by these coins and I am certain they purchased them in "good faith," but does this excuse the way in which they made it to the marketplace? Although they may have been buying in "good faith," were the dealers and collectors that purchased from this importer practicing adequate "due diligence"? Were they asking about how he acquired them, and if so, simply taking his word for whatever answer he might have supplied?

A couple of years ago, Classical Numismatic Group (CNG) acquired a very rare coin of Brutus commemorating Caesar's assassination and paid approximately $23,000 for the coin (a wholesale price), which it in turn would have tried to sale for around $30,000 (D. Alberge, "Swoop by Customs Returns Brutus to Scene of the Crime," Times Online, 15 June 2006; L. Worden, "Ancient Coin Buyers, Beware," COINage Magazine 42.11 (Nov. 2006)). The Greek government claimed the coin was smuggled out of Greece and the coin was returned. Mr. McFadden of CNG acted in "good faith" in buying the coin and returned it to the Greek embassy when asked to do so. But how extensive was the "due diligence" process? The Times Online article stated:

"Mr McFadden, whose company is regarded as one of the world’s leading specialists in Greek and Roman coins, told The Times: 'He did some work for Nino [Scavona] in the 1980s ... One doesn’t refuse to deal with someone because he has a slightly shady background.

'One looks at the deal on the table. We’re business people. If there’s any indication something’s not legitimate, we don’t deal in it.'"

Here is an excerpt from the COINage Magazine article:

"'After the cash was seized,' McFadden said, 'his daughter kept phoning up, asking when her father could get his money back.' That provided a clue that the man was indeed the seller. 'That's something that happened after the fact,' McFadden said. 'Not only did I not know about it, but I couldn't have known about it.' After all, it was the coin dealer who vouched for his ability to sell the coin. 'If someone brings a coin in to you and says they own it and they can sell it to you and they guarantee the authenticity — obviously I'm aware of any recent reports of theft, so if the coin had been reported stolen, I would have known about it — then there's nothing more one can do,' McFadden said. Longtime coin dealer Wayne Sayles, executive director of the Ancient Coin Collectors Guild, agreed. 'There is no tradition in the world market for the background-checking of sellers, nor is there any real reason for it,' Sayles said. 'There are pertinent and applicable laws in most countries that deal with import, theft, etc., and dealers do, in my experience, try diligently to follow those laws as they apply at the point of sale.' Sayles lamented that 'we may have lost an opportunity to contest a claim that seems to be arguable on several grounds.'

It is clear that existing due diligence processes in the antiquities trade are not as rigorously applied as one might hope and much of the existing processes seem to rely very much on the mere word of profiteers and suppliers. "Good faith" purchases and dealings are not enough. Dealers and collectors would add dignity to their activities if they were to follow the example of the AAMD and adopt more stringent due diligence processes and acquisition guidelines. This would decrease the demand for recently looted material by diminishing the market for it and profitability of it.

(Image of an Egyptian relief withdrawn from a Bonhams sale and now repatriated to Egypt. Source: D.W.J. Gill, “Tomb of Mutirdis (TT410): Update,” Looting Matters, 30 June 2008)

This post has been cross-posted at SAFECorner: "Good Faith, Due Diligence, and Market Activities."

3 comments:

said...

David has kindly informed me that an earlier posting of his shows that the Egyptian inscription that was withdrawn from a Bonham's sale was, in fact, published and photographed in an excavation report and thus the provenance information, presumably reported to Bonham's by the consignor or seller, was falsified
("Bonhams Withdraws Egyptian Inscription from the Tomb of Mutirdis (TT410), Looting Matters, 8 May 2008)"
.

Again, "Good faith" is not good enough. What is needed is rigorous due diligence.

said...

Nathan-

A couple of comments to your post.

1. I agree with the proposition that dealers should act in good faith. I think a lot probably depends on the facts and circumstances of each individual transaction and the nature of what is being purchased.

2. Legally, I could support some documentation requirements for coins. In her comments to CPAC on the Cypriot renewal, Dr. Wartenberg suggested that Customs require dealers to produce an invoice to customs inspectors detailing from whom they bought the material in question. As Ute also observed, that would probably cull out a large portion of the dodgy material you are concerned about. (At a minimum, it would supply Customs with names of consigers that can be shared with foreign authorities if warranted.) My main concern with import restrictions as they stand today are the onerous documentation requirements. I simply don't think the required importer and exporter certifications on a coin's whereabouts is "doable" for most coins (particularly given the number that are imported).

3. I think we have already corresponded a bit on the issue of legal theory versus the reality on the ground. In Bulgaria, for example, there are laws requireing export permits (which may or may not be easily obtainable), but at the same time ancient coins are quite available for sale. The truth is a lot of laws in other countries do not seem to be enforced very stringently. Under the circumstances, I find it hard to fault people who buy artifacts in foreign countries when such artifacts are sold quite openly.

4. I must confess I am not really familiar with the first example you give about someone illegally exporting coins from Bulgaria. With respect to the CNG story, you might not be aware of this, but the UK police returned the purchase price to CNG, presumably because they had no legal basis to doubt CNG's good faith.

Best regards,

Peter Tompa

said...

Peter,

Thank you for your comments. I was aware the money was returned to CNG as there was no indication CNG did not act in "good faith." The two online articles cited indicate this as well as the fact that Customs officials seized the cash from the suppliers at the airport on their return trip. I do not doubt that CNG acted in "good faith," for me the question is 'how rigorous is the due diligence process.'

If you would like to read the article "Cultural Property on the Move...Legally, Illegally" and don't have access to the International Journal of Cultural Property, I could send you a photocopy by post, should I be able to track down my copy here. Just send your preferred mailing address privately.

I'm glad we can agree that due diligence processes could be intensified and that some documentation may be more reliable than just 'the word' of a supplier. The question is then, how one would go about implementing such a plan and convincing dealers and collectors to go this route. Thank you again for the comments.

All best,
Nathan