Art Law: Immunity from Seizure for Foreign Art in Canada

Many countries grant immunity from seizure to artistic and cultural objects while they are on loan from foreign jurisdictions. The immunity is desirable because it operates as a safeguard to the lending institution that its artwork will not be seized while it’s abroad and thus perhaps more vulnerable

When artworks are granted immunity from seizure in the country of the borrowing institution, a creditor of the lender in the jurisdiction of the borrower cannot attach the artworks in order to obtain the enforcement of a previous decision or award. Likewise, a party cannot contest ownership of the cultural objects on loan while they are in the borrower’s jurisdiction.

Throughout the centuries, many works of art have either disappeared or been stolen from its owners. While the grant of immunity from seizure of cultural objects on temporary loan protects the lender and benefits the borrower, it hinders alleged owners of stolen works, since their true owners will not able to seek the seizure of those objects if they have been granted immunity. There are a number of legal actions claiming ownership of cultural objects that have been stolen or expropriated during the communist regime in the USSR and the Nazi regime during World War II. With an increased circulation of artworks for temporary exhibitions worldwide, immunity from seizure has become an important question for lenders and borrowers alike.

In 2011, the Mary Brogan Museum of Art and Science in Florida received on temporary loan a 16^th-century painting from Girolamo Romano from the Pinatoteca di Brera in Milan. The Italian museum had acquired the painting in 1988 and did not check its provenance. After the painting was received in Florida,  the family claiming ownership of the painting  successfully obtained an order to force the American museum to retain the artwork and do not return it to Italy on the grounds that the painting had been stolen from a Jewish family during World War II. The museum kept the “Christ Carrying the Cross” painting until the ownership dispute was adjudicated by the American court.

Another interesting case regarding disputes over ownership of artworks involved Germany, China and Taiwan.  In 1996, the National Palace Museum in Taipej agreed to loan several artworks that are part of China’s cultural treasury to a museum in Germany. Due to the political and historical disagreements between Taiwan and China, Taiwan was concerned was that China would try to seize the art collection once it was on display in an exhibition in Germany. As a response to this impasse, the German government enacted its first law granting foreign cultural objects immunity from seizure for temporary loans.[1]

For years, until the enactment of effective anti-seizure legislation by the U.S., Cuba refused to loan cultural objects to the U.S due to concerns that these objects would be seized by private individuals in the U.S. on the grounds that they had been confiscated from them by the Castro administration.[2] Until recently, Russia had also prohibited the loan of artworks to the U.S fearing disputes over ownership and eventual seizure of the cultural objects. This changed with the enactment of the Foreign Cultural Exchange Jurisdiction Immunity Clarification Act by the Obama administration.

The second situation affected by the existence of an immunity against seizure arises where the lender has unenforced debts in its home country and, for that reason, once the artworks leave the lender’s jurisdiction on a temporary loans, the lender’s creditors may try to enforce their claims by commencing legal procedures in the borrower’s jurisdiction.

The most well-known case illustrative of this scenario is the Noga case, in which the Swiss company Noga started legal proceedings in Switzerland in order to seize some paintings temporarily loaned by the Pushkin Museum in Moscow to an exhibition in Switzerland. Noga sought to enforce an arbitration award against the Russian government and believed that it would have greater chances of succeeding by enforcing their claim before the Swiss courts. Swiss authorities eventually returned the paintings to Russia due to the governmental nature of the cultural property generally and the immunity granted against seizure of State property. The existence of anti-seizure legislation specifically directed to protect cultural objects from seizure in temporarily loans would have prevented much of this judicial-political saga from occurring.

Canada

In Canada, protection against seizure of foreign artworks is granted at the provincial level rather than at the federal level[3]. Five Canadian provinces have statutes that grant protection against seizure for temporary loans of artworks: Ontario, British Columbia, Manitoba, Alberta and Quebec. In Ontario, the procedure is relatively simple and is suitable for museums, and art galleries. The borrowing institution must complete an application package indicating the name, place of origin and other details about the artwork that will be brought to Ontario at least 45 days before the object’s arrival. As the process of reviewing the application package may be relatively lengthy, it is recommended that the application be filed in advance by the borrower. The lender must also specify the exhibition or event in which the cultural object will be used.

When the application is complete, the government of Ontario will determine if the artwork for which the application has been placed is of cultural importance to the people of Ontario. If so, the government will publish a notice of determination in the Ontario Gazette, under the heading “Foreign Cultural Objects Immunity from Seizure Act Determination” acknowledging the object’s cultural significance and that the temporary exhibition is in the interest of the people of Ontario.  It is important to clarify that the object will not benefit from immunity until the said note has been published. Before you or your institution lend or borrow cultural objects or artwork from foreign jurisdictions, consult with HazloLaw – Business Lawyers international law department for legal assistance.

[1] Weller, Matthias. “The Safeguarding of Foreign Cultural Objects on Loan to Germany”. Rivista di arti e diritto on line. Online at: http://www.aedon.mulino.it/archivio/2009/2/weller.htm

[2] Online at: https://www.hhrartlaw.com/2017/02/newly-enacted-u-s-statute-protects-foreign-museums-from-art-seizures/

[3] . In contrast, the United States’ legislation grants immunity for artworks at the federal level in the Immunity from Judicial Seizure Statute (22 U.S.C 2459).