Steve and Katie talk to Susan Mumford and Chris King, co-founders of ArtAML, about the recent roll out of AML regulations covering art market participants in the United Kingdom, who is implicated, how they can comply, and what this means for art businesses and the culture of secrecy in the art market generally. The requirement to determine and seek documentation of the ultimate beneficial owner on each end of the transaction is something financial institutions have long done, but not art dealers. ArtAML is an online platform designed to help art market participants comply with their legal obligations of due diligence and documentation. This conversation is of particular interest to those in the United States as the United Kingdom is the second largest art market outside the United States, and we expect AML regulations to roll out to the art market in the United States soon.
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: Hi, Katie
Katie Wilson-Milne: Hi, Steve.
Steve Schindler: So, I can’t believe it, but we are about to start season five of the Art Law Podcast. It seems only yesterday that we launched this project, and I have to say it’s been a labor of love, a lot of fun.
Katie Wilson-Milne: Yeah, it has, and I can’t believe we’re on our fifth season either. We’re having fun, and we’re aging. That’s what I’m taking away from this.
Steve Schindler: And who would know that we have full time law jobs in addition to this?
Katie Wilson-Milne: Right, luckily there’s some overlap, or it’d be more difficult. But yeah, we’re looking forward to a great fifth season, and we have a lot of good ideas already, I think. And we’re going to start season five with one of our perennial favorite topics, which is money laundering or anti-money laundering.
So as we’ve discussed, the anti-money laundering regulations have hit Europe and the UK now in full force. We are trailing behind here in the United States, but many expect that these regulations, that have long governed the conduct of financial institutions under the Bank Secrecy Act in the US, will become applicable to the art market in the near future.
In fact, they’re already being applied to the antiquities market in the United States. So it’s with great interest that we get to track the developments in the United Kingdom, the second largest art market after the United States. And to help us understand what is going on in the UK now and how the art market there is receiving the new regulations, we have with us Susan Mumford and Chris King, founders of ArtAML, which is an online platform designed to help art market participants understand and comply with the new anti-money laundering regulations applicable to them in the United Kingdom. So welcome, Susan and Chris, wonderful to have you on the podcast.
Susan Mumford: It’s great to be here. Thank you for having us.
Chris King: Pleasure to be here.
Katie Wilson-Milne: So let’s start by having you tell us a little bit more about what ArtAML is and does and also your backgrounds and how you came to do this work.
Susan Mumford: Right, I’ll kick off. So essentially ArtAML has been in process for over three years now. We first found about the then-incoming legislation back in early September of 2018, the legislation did come to be as of January 2020, which was of course then ahead of a very different art market. And essentially what happened- and I’ll invite Chris to jump in here, too- is in May of 2018, the European Union, they proceeded with the Fifth Anti-Money Laundering Directive. And with that, it was determined that as of the 10th of January, 2020, that EU member states- of which the UK was still one- that they were to have implemented legislation from the directive in the EU, into their own legislation in their own jurisdictions. The UK did indeed achieve that. The way that ArtAML came to be was that essentially, well, I have a background in the art market I was originally an art dealer myself in London.
I had a gallery, I was an advisor, and I founded the Association of Women Art Dealers back in 2009. And I positioned myself as essentially a sector-supporting entrepreneur. So when I came across the incoming legislation, and having watched Chris deal with AML himself in his work, I thought, “My gosh, how on earth is the art market going to do this?” All the while thinking, “I understand why governments are doing it.” So I might take the opportunity to hand over to Chris to say why I immediately thought of yourself and had some understanding as to what the art market might be facing with a low level of €10,000, in terms of transactional value that would trigger the need to conduct AML checks.
Chris King: So my background- I mean, professionally, I’m a software engineer. I’ve spent my entire career writing software. Started off in the oil industry, but I’ve spent since the kind of late nineties working in financial institutions. And for five and a half years before Susan and I started working full time on ArtAML, I was working at one of the big UK retail banks, and I worked on three related but separate projects to help that bank streamline what they call their onboarding process, which is getting new customers onboard. And that was ultra-high net worth individuals, it was financial institutional customers, and then companies. So a lot of that process was about streamlining user interfaces, so that you could ask people a whole series of cascading questions. Are you a UK citizen? Are you a US citizen? Where do you have property, all this kind of stuff.
And each of those things kind of lead to contingent questions underneath it. It’s like you see on printed forms, “if you’ve ticked yes, to this question proceed to section 5,”but doing that with software. And one example of how that succeeded is the onboarding process for ultra-high net individuals went from about three months to about a week. So I have a lot of experience in this kind of area. And there are quite a lot of technical challenges in it that don’t immediately become apparent to you when you start off. And I had also seen how banks compliance departments struggled with this stuff. So when Susan rang me from the art business conference to say, art dealers are going to be subject to anti-money laundering requirements, I immediately knew that this was going to be a big problem for them, because Susan and I have a number of friends who run small art businesses and they are not the same kind of minds as those who work in bank compliance departments.
Susan Mumford: Yeah, and they’ve never had to deal with direct, what you might consider more casually to be overt legislation in the UK context. They had all had to deal with the General Data Protection Regulation, i.e. GDPR, starting in May of 2018, but that’s another example of indirect regulation applying to all sectors. Same as the Proceeds of Crime Act, which actually in an application to compliance in fact, for the art markets- although again indirect- would be looking at sanctions, as in not dealing with sanctioned individuals or companies and looking- in the context of art transactions- looking at the provenance.
Katie Wilson-Milne: Right, and that’s the criminal statute, right, in the UK?
Susan Mumford: Correct.
Katie Wilson-Milne: Which we also have- you know, we have that in the United States, too. It’s still a crime to engage in money laundering whether you work on the art market or not. So we’re just talking about, are there regulations promulgated that require you to take certain steps around those practices? But right, it’s criminal already.
Susan Mumford: Correct.
Katie Wilson-Milne: I think it would be helpful for our readers, who we should not presume know what anti-money laundering regulations look like, know what the HMRC is. Just to give a little bit of background, Chris or Susan, about what the Fifth Directive is-
Chris King: I can do that.
Katie Wilson-Milne: That would be great. And then Chris, if you could say what it is, but also then how does it get implemented? Just the connection between a European wide directive and then what happens in the UK.
Chris King: So basically, okay, the Fifth [Anti-]Money Laundering Directive came out in May of 2018, and it had a number of kind of key changes to European rules to do with money laundering. And those were that virtual currencies are now regulated, so that’s cryptocurrencies and various other kinds of things. Art dealers were added to regulated entities, training and policies and controls and procedures are now required for regulated entities. There were also changes for EU states, such that they were required to publish and keep up to date lists of politically exposed persons. They were required to publish and keep up to date lists of company ultimate beneficial owners. It also said that anyone dealing with high-risk countries must do enhanced due diligence. And there were other things to do with prepaid cards and intelligence sharing and stuff.
At the time, the UK was part of the EU, and the UK has always been at the forefront of this legislation actually. So the government was keen to get this in, but because of Brexit, I think there was a lot of pressure on treasury to draft legislation quickly. So a pretty kind of bare-bones version of the Fifth [Anti-]Money Laundering Directive was passed into UK law. And that was a set of amendments that were published in 2019. And for our conversation, the main thing was that it brought art market participants into the purview of regulations basically.
Katie Wilson-Milne: So what happens in January 2020 though? Why is that-?
Chris King: Okay. So what happened in January 2020 is that the 2019 amendments became law. And that said the art market participants have to comply with the legislation. And that means they have to do customer due diligence, CDD, on their customers. That means they have to collect identity documents, get proof of address. If the person turns out to be politically exposed, then they need to do enhanced due diligence.
The interesting thing is that the law came into force on 10th of January last year. The guidance didn’t come out until February that year, so how anyone was supposed to comply with that point was a very interesting question, but it became clear throughout the year that there were two things going on. The first obviously was the pandemic, which made a huge difference and slowed everything down. But the other thing was that it became very clear to us in our conversations with the regulator that their main focus for the next year was education. So they weren’t going to start charging into art galleries and doing audits. They realized that this was a completely unregulated sector, completely unused to this kind of thinking, and getting the news out about the fact that people had to comply, they had to register was the main focus of the subsequent year.
Susan Mumford: And the funny thing, if we just- if I mention one more thing about the Art Business Conference, when we had just heard about this incoming legislation from the Responsible Art Market Initiative called RAM, someone- an associate director to a gallery we took our tea break said, “Oh, Susan, it’s fine. You’ll sort this out for us.” And she had no idea how very true those words would end up being.
So what we proceeded to do with ArtAML, we- within the week of hearing about it, we had registered the URL. We were working on potential ideas for solutions. The motivation was very much so from the beginning helping support what are now known as art market participants- we’ll talk about that later-to comply, to learn the thinking, and then to proceed with their businesses as well, and of course, reporting any suspicious activity that they might detect. Chris.
Chris King: What made things difficult early on for everybody, including us who were trying to develop software to deal with this, was that although the legislation had been published, we were waiting for the guidance for the art market. So- and the guidance for the art market came out a month after the legislation had actually gone into effect. And up to that point, nobody knew what the guidance was going to say. And there was rampant speculation, and Susan and I went to a number of panels where there were august legal minds opining on what this was going to mean with no clue at all as to what it was actually going to come out with. And in the end we got 111 pages of guidance, extremely technical guidance.
Katie Wilson-Milne: Yeah, we’ll certainly get into a lot of these details and the practicalities, which is something we’re always interested in. But it sounds like basically you created a mechanism by which art market participants can comply with these new regulations without having to figure it out completely on their own. Is that right? So if you sign up for your service, you can- you’re guided through the steps you need to take and there’s some hand-holding I guess, about how to comply.
Susan Mumford: So what we have focused on, if I actually take a step back for a moment and think about how we first started. So we initially put together a platform that takes a lot of work to, and a lot of time actually, to do this: the kind of tree structure that Chris was talking about, how you answer one question then it leads you in a certain way. So we walk people through the process of conducting AML checks and that incorporates private individuals, companies, company searches, running a PEP [politically exposed person] and sanction screening. We divide it to three different kind of areas, customer, artwork, and transaction all with different considerations. So you might do all three for a single transaction.
That was the initial focus, was the walking through of the actual check itself. In time, what happened was as we saw the needs and also a lot of confusion of art market participants in terms of, well, how did they undertake AML training, which is a requirement, which I’m sure these things will end up applying when other jurisdictions are incorporated with equivalent legislation as well. How do they go about conducting a risk assessment looking at the risks of- that their business might face- of being the target of money laundering activities? How do they then create an AML policy with policies, controls, and procedures? So what you have today is a- what you might consider to be a holistic or full circle solution where you can conduct the AML checks, you can undertake the AML training, get your certificate that’s specifically geared at the needs of the art market currently, according to the UK or more broadly, the Fifth Anti-Money Laundering Directive. That will be developed for other jurisdictions and times, such as the States, we anticipate. And then also you’re able as a user to go through the process of conducting a risk assessment specifically for your business, and then we’ll create a policy that will then really go alongside the AML checks that you’re conducting.
So let’s say for example, if someone- I was actually just working on one earlier today. So if somebody regularly transacts with individuals in a certain country- and that example that I was looking at- that borders a high-risk jurisdiction, then we’ve outlined for them, okay using the ArtAML platform, here’s what you can do to look into the- what risks have been presented to mitigate the risks. And hopefully what happens is several fold: as a result of actually actively doing compliance, you’re not targeted in the first place by criminals. And if any criminals do target the business, trying to move money through, for example, then actually you would detect that there was an attempt, and you would then be able to submit a suspicious activity report.
So there’s that, and what we bring together with this is with the training, a lot of the focus is understanding the thinking behind this sort of compliance. So taking a risk-based approach, what does that mean? It’s not a matter of doing steps 1, 2, 3, 4, it’s a matter of, “how do you think about it?” Once people understand why they need to see if somebody’s a politically exposed person, why they need to see if somebody might be associated with a high-risk jurisdiction, then when they’re walked through the process, they’re able to understand what steps to take. And furthermore, it will make it easier for them to explain to their clients here’s the reason why I need to be looking into this information. So it’ll give them that tool to be able to do what they need to do. And they are actually making the ultimate decisions as to whether or not to proceed with the transaction.
Chris King: There’s one other perspective, I would say that I think we realized we needed to offer in ArtAML, which is that- okay, when I was developing these solutions in a bank, the relationship managers so-called, the people who were onboarding the clients, their bonuses depended on upon the amount of money they brought into the bank.
So when they were filling in the information about their clients, we did not show them what the risky answers were, because they would have gamed it otherwise because that’s just what people they are basically, and their bonus depends on it. And the other thing is for the more kind of general AML solutions that are out there, an awful lot to them are aimed at back office financial people doing this stuff day in, day out.
And neither of those people are going to end up being art dealers. So one of the things our software does, for example, is it quite explicitly says to you- when you’re finished completing a questionnaire about a person, it’ll say to you, “Here are some red flags from your answers.” So rather than a compliance department having to do this, or you having to know about this, we explicitly tell the art market participant, “these are red flags that you need to think about.”
Steve Schindler: So could we step back for one second and talk both about a couple of terms that you both used as “art market participants” and who they are, and then the term “risk assessment?” Because I guess my understanding has always been that the way these regulations are supposed to be applied is based on a risk assessment, right? So that not every art market participant is going to be subject to the same level of regulatory demands as others. So a small dealer who is dealing, say, just in the EU might be subject to a kind of different level of regulation than an auction house. So maybe if you could just walk us through both who these regulations apply to within the art market and explain a little bit about this risk assessment process that you’ve mentioned.
Susan Mumford: So in terms of who actually is affected this in fact is still being worked out in UK now. And part of our hope for the US is that perhaps authorities there will end up learning from what the UK has gone through. It is an ‘art market participant’, it’s actually a term with a definition that I’m going to read to you from our booklet. So it is actually- this is defined. What’s interesting is that at the moment-
Chris King: The wording in the booklet is taken directly from the legislation.
Susan Mumford: That’s right. There is a consultation underway at the moment in the UK that could actually change the definition of what an art market participant is. So what we see with that is that it’s still pretty fresh legislation. It’s still being still being fine-tuned, but at present it reads as follows- and then I’ll give you some particular insights, “An art market participant is a firm or sole practitioner who trades in or acts as an intermediary in the sale or purchase of works of art and the value of the transaction or a series of linked transactions amounts to €10,000 or more.” So it’s whatever that converts to in the UK and the British pound, so approximately £8,600 pounds at the moment. Art dealers, galleries advisors. I always think of this in three parts: are you acting as an art market participant? Are you dealing in a work of art? And is the value that amount? So art dealers, galleries, advisors, auction houses- no question. There’s been a lot of confusion over intermediaries and introducers. And that’s something that we as stakeholders amongst the whole group of stakeholders in this space, we’ve regularly been discussing with HMRC who is the regulator for art market participants under the money laundering regulations in the UK.
Where it’s getting to now is- in terms of clarity- is that essentially if somebody is a professional involved in a transaction, if they’re negotiating paperwork, the percentage, etc., for an auction house sale or a gallery sale, if they are essentially taking an active role, something that affects the sale of the work of art, then they end up being considered to be an art market participant. As opposed to simply knowing a collector, saying, “go work with that gallery,” but taking no role in say the consignment of artwork to pieces. And even if they might receive an introducer’s commission, but if they’re helping to negotiate on behalf of a collector, as an example, then they would be considered to be an art market participant. And further to that you have also a more recent discovery. There was something called, in general terms, a risk guidance that was published by HMRC in summer of 2021. And that outlined that interior designers can be caught. And that, I’m sure, is going to be a surprise for many interior designers when they hear the term “art market participant,” they would not imagine, I’m sure, that they would be caught as such person, but they could very much so be involved as one. And then there was a question about artists, whether or not they would be caught.
And although that was not the original intention by HM Treasury, who’s responsible for the legislation itself, they were caught when you looked at the definition. So there was a clear exclusion of artists for the time being, which also includes artist estates, although that’s only from verbal understanding. There’s nothing in writing at the moment that specifically excludes artists’ estates. And this is currently being considered for an amendment to the regulations. There are actually a couple of consultations taking place at the UK at present that we’re involved with at ArtAML. And it’s looking at, potentially, the exclusion of artists. If artists are to be excluded, would it be all artists who would not have to comply with the regulations? Could there be a difference between, say, artists who are selling directly versus artists who are selling through a dealer or a gallery? So actually there’s a reason that the HMRC sector lead has said to our- ourselves before about the art market being more complicated than other sectors, in more or less words. It might seem in the first instance that it’s pretty straightforward, but actually there are so many players and the transactions are set up in so many differing ways that they really have had to look into detail about how this is going to be clarified. And it’s the reason why there is actually an update to the British Art Market Federation guidance that is expected. Not a complete rewrite, but an update to it, to help bring some clarity to a lot of the questions that have come up in the past 18 so odd months. So I think I’ll hand over to Chris to then pick up about the other question.
Katie Wilson-Milne: Well, Susan, can I — sorry, just jump in and ask you, what about collectors? I mean, if you’re buying and selling art, even if it’s your personal property, aren’t you technically covered by that definition? I mean, how is that working?
Chris King: Because it’s covered by the phrase of “by way of business.”
Katie Wilson-Milne: Okay. So you have to be in the business of buying or selling art? It’s interesting, you mention this artist potential exception, because I’ve been wondering about that as a potential loophole. I mean, it seems like if artists are exempted, then any gallery selling primary market works could just intro a collector to an artist who could sell to them directly and not have to do this due diligence. So not that I’m advising on this policy, but I could see a real potential problem if that’s exempted.
Susan Mumford: Yeah. We’re very aware of this. And in fact, when artists were first exempted, I might have been speaking with one artist who said, “Oh, well, then I can do more of the transactions myself.” At which point you really then want to look at that definition of an intermediary, or introducer, do they end up becoming an art market participant themselves? Because actually if say, someone- let’s take, for example, an advisor who’s perhaps working with an artist. If they say, “okay, artist, you go and do the transaction, you do the invoicing.” But actually if the advisor, based on what we’re being told now that we’re looking forward to going into writing soon, if the advisor has set up the transaction, they’ve done the negotiations, then actually they’re actively involved, and they would still be an art market participant. So in fact, there would still be an obligation by someone to conduct these checks. But whether or not people would be aware of that, of course is another question.
Steve Schindler: I think that that hypothetical assumes the desire to circumvent these regulations at all costs. Bearing in mind I guess that galleries still do perform very important functions for artists, which is why artists continue to sell through galleries. So they would have to be this balancing out of, you know, what would you be giving up as an artist if you were to say, take over the typical function of a gallery, even if it’s- it can’t be to avoid AML regulations.
Katie Wilson-Milne: I don’t think you would. I think the gallery would still do all the same stuff. And then they’d just be like, all right, if you want to buy this, go see the artist. They’re the seller. But they would arrange everything. They would have the relationships, and then the artist would pay them a contractual fee. Like, I pay you X amount every year to manage my career for me or something. So it seems pretty easy to get around. Although I imagine that, you know, HMRC will define the contours of the exception probably more precisely.
Chris King: And they will adjust that map as appropriate depending on what they’re seeing happen, because they are- I think that by looking at the plain wording, you can work out ways of getting around being caught by the legislation. But trying to get around, being caught by the legislation is something that will get you in trouble with HMRC, basically.
Susan Mumford: Right. It’s very much so the attitude if people are really trying to do the right thing, working with this, rather than around it. Even if they get something slightly wrong, if they try their best, and they’ve documented what they’ve done and why they’ve come to the decision that they have, they’ll be in much better standing than if they have clearly tried to avoid their responsibilities.
Katie Wilson-Milne: So HMRC is what, and why are they the sort of body that’s overseeing this?
Chris King: So we have mentioned two different bits of the UK Civil Service. One is HMT, Her Majesty’s Treasury, which is the government department that sets financial policy and they are responsible for drafting the legislation. And I guess the US equivalent is the Treasury. And HMRC is Her Majesty’s Revenue and Customs, and they are the equivalent of the IRS. There are a number of regulated sectors in the UK, like lawyers, accountants who have their own professional bodies to which you have to belong to practice in that profession. But the art market as we know, does not have such a professional body. And so they have been regulated by HMRC, they have been given a regulator.
Steve Schindler: Congratulations.
Katie Wilson-Milne: Our IRS does not have capacity for that right now, so that’s interesting. And so when you’re saying the regulations now that you’re helping art market participants deal with are registering with the authorities, right? Doing due diligence on the ultimate beneficial owners in a purchase and sale transaction for works of art over €10,000. And then I think, you know, having some kind of AML policy or compliance officer, right? Those are the three sort of areas that the regulation requires.
Susan Mumford: And training.
Chris King: There’s one thing I would clarify, it’s an easy thing for people to misinterpret: it’s not just the sale/purchase of works of art over €10,000. It’s transactions involving works of art. If I’m a dealer and I sell a painting for £15,000, I will need to do due diligence on the buyer. If I sell three paintings for £5,000 each in one transaction, I will need to do due diligence. If the buyer then says, “Oh, look, well, how about I split that into three transactions? So I’ll buy this painting from you this week, that one the week after, and that one the week after that. So we don’t have to bother with all that due diligence stuff.” That person should be the subject of a suspicious activity report, because they are trying to avoid being checked.
Katie Wilson-Milne: And let’s stop and talk about that for a second, because I think that is one of the most interesting things about this topic is the sort of culture clash between the way the least non-auction art market works historically in terms of how deals are done and agreements are made, and the kind of transparency that happens in- or record keeping at least- in financial institutions. And I think for those of us who work in the art world, that’s just such a striking divergence that it’s- I think for people who are not familiar with how the art market works that this may not seem like a big deal, right? It’s like, of course, someone’s paying you $1 million for a painting, get their basic information, no big deal. Ask for their passport. But that is just so different from the norms of the art market that there’s not only, I think what we’ll call logistical friction in terms of having the staff or the wherewithal, the education to know how to comply with these measures, but also just a shift the way these relationships work. I don’t know if one of you wants to comment on that. But I think it’s worth explaining where we’re coming from. Steve and I have a US perspective, but it’s my understanding it’s not entirely different in the UK.
Susan Mumford: No, and we’re very much so looking at this from the perspective of the art market being international. And our long-term intention is to support art market participants across the world if they are in localized jurisdiction, kind of a legislation. Something that I’ll add to what Chris was saying earlier- the thing that was expected as of January 2020 was that they were complying by conducting AML checks for qualifying transactions. They didn’t need to actually register as an art market participant in the UK at that time. They had the time for it and that was delayed, because, of course, the pandemic. One thing that is fascinating being in the roles that Chris and I have as the co-founders of ArtAML is that we have a lot of conversations with people who are just coming across it.
We do find that when people are contacted by HMRC- specifically, this seems to be happening after they have submitted their registration, you might even consider it to be an application, to be an art market participant as basically a supervised business under the money laundering regulations, they’ll often be contacted by HMRC by telephone or by email being asked for additional information. Being told that they need to undertake AML training when maybe they haven’t done it yet. They didn’t realize, or they may not realize somebody in the business needed to be doing AML training. What we find in those conversations is really varying points of view. So we’ll be talking people through AML checks, and some people know more, some people know less. And we find that some will go, “Oh, we always know the identity of the buyer. That’s something that we request.” Chris and I not too long ago were talking about someone who has a relative who’s a very well-known artist, and they always want to know where the artwork is going. So not a problem. It’s the way that they work. And there are some art advisers that also are exactly the same. And actually if I just think about some anecdotal observations, some confident, maybe more established businesses that just have no problem going, “in order to do this deal I need to know who the buyer is.”
But then there are other people with whom we’ll be speaking and they’ll say, “my business is founded on the lack of transparency, not knowing where the artwork is going, not knowing who’s involved with it. And if I request that, I am not going to have my business.” So we’re seeing this dichotomy for a few years now, we’ve been speaking with people about saying, “Okay, what then, what value perhaps does maybe an art advisor brings to the equation?” Surely there is value that they’re bringing, but perhaps there’s a redefinition of what that is in their roles and transactions, or some of them actually, some of them will be experts, but some of them actually have fabulous black books. So it could be that they’re actually acting more as introducers or intermediaries in which case could still be an art market participant, but they might need to find that they work in new ways now.
Katie Wilson-Milne: I think one of the issues that we hear about and see in the United States is that the value of someone’s art business is often the secrecy of the relationships they have. And so I certainly question whether in the end that’s true, but I think there’s a perception that you hold your contacts very close. You know, you don’t tell people on either side of a transaction, a buyer or a seller, who they’re dealing with. They’re dealing with you, the art dealer, and that’s it. And that that has been the way things are done for so long. And at kind of all levels of the art market that at least in the US, it will be a sea change for the ultimate beneficial owner who is buying and selling to know each other.And there’s a sense that that will really cut out some of the value that the dealer provides. So I don’t know if that’s a concern in the UK, or the UK just operates- the art market is slightly more transparent anyway, but I’m just curious, because that seems to be that- one of the friction points in the United States that’s the most pronounced as we think about this.
Steve Schindler: And I guess the other thing just to think about is that there are so many reasons for secrecy that are legitimate. And I always struggle with just the notion that just because dealers, and collectors even, want to keep their identities private, it doesn’t mean that they’re engaging in any kind of illicit activity. There are collectors who legitimately don’t want the world to know what they have in their home for all kinds of good reasons. So this really does sort of confront those legitimate concerns.
Susan Mumford: Agreed. And in fact, we do find ourselves also talking often about the difference between say privacy and security. So having an AML check done on a collector does not mean that there is suddenly a register of collectors and everyone is going to know who has acquired that piece.
Chris King: The transparency that the regulations open up is from one end of the transaction to the other. So it’s like a thin pipe looking from one end of the transaction to the other. It doesn’t open it up to the view of everybody in the world. But one of the important things in the UK legislation is there is a regulation to do with data protection and data processing. And it says that you may not use information collected for the purposes of AML for any other purpose. Now, what that’s trying to get at, is if I end up doing AML on Susan’s collector, I should then not add that collector to my mailing list, call them up, say, “well, I know you like this kind of-,” I absolutely shouldn’t do that. Now the response we get from dealers is, well- they just laugh and say, well, of course, how would you enforce that? Which is a question. But I think to my mind, it’s about dealers need to not be quite so predatory with each other’s customers. They now have a legal responsibility to hold this information in a way that fulfills their legal obligations, rather than just immediately assume that this is somebody else that they can sell to because that’s not the purpose of collecting that information.
Katie Wilson-Milne: I think that’s a really important point, right? The only person getting this information is the dealer and potentially the regulator, right? It’s not broadly advertised. But I think that still is such a change, right? That dealers and collectors at a certain level operate in obscurity and are used to that and like that. And operate through entities that shield their identity. And why that is done is- other than for tax avoidance- is up for discussion. But like Steve said, there are many legal and legitimate reasons that that secrecy may be desired. So it’ll be interesting to see how dealers sort of either snap out of that or react to that or assure their clients the way that a financial institution assures their clients. That although I give my bank all my personal information, including my Social Security Number, I trust that they will do nothing with it, right, other than what they tell me. So there’s an information sharing, but also a trust between the two parties that may need to develop. And we’ll see how that develops.
Steve Schindler: So can I ask a very practical question just about the way your platform works? If I have a gallery, and I have a client that comes in, wants to buy a picture that’s in excess of £10,000. If I’m a client of yours, do I have to sit down with that client and go through questions and answers, or do I provide that client with access to a software platform and then they just fill it out with the checklist that Chris you described earlier?
Chris King: You can do it both ways. So through our platform, the dealer can either send a unique kind of one-time link to the collector who can then scan their ID and upload their proof of address. Or if the collector is sitting in front of the dealer, then the dealer can send a similar kind of link and scan the person’s identity document directly. I mean, it is a change that you won’t just be able to walk into a gallery and walk out with £20,000 worth of painting under your arm with nobody any the wiser.
Susan Mumford: And the art market participant does go through differing questions, whether it’s a private individual buying or if they need to first identify the company and then the company’s ultimate beneficial owners, as well as senior management, are certainly in case of the finding not working- in terms of if somebody is sanctioned, I certainly would not think that the dealer would be sharing the results of the sanctions check right in front of the collector, for example.
And then there are different flows that you might do as well. So it could be that whereas we’re really talking about a gallery, say, selling and going through the process that way, if actually instead it’s an online art marketplace, the collector might actually go through a process of uploading the information that they need to and then the information ends up being received by the art market participants’ business or by the platform who’s conducting the AML check. They review it, they go through the steps then that are needed to consider. Things like is the work of art going to the same location as say the proof of address and if not, does it make sense? It’s thinking through some risk-based questions like that, that the art market participant will need to consider before then approving the transaction. But in terms of the collector, they don’t actually need to provide very much information, typically speaking, and that’s a big area of focus for ourselves is setting up a platform. So that it keeps information secure for the collectors to give them that assurance and also to really take a lot of burden off them. You don’t want to overly inconvenience a collector to turn them off, and there’s actually a concept in the UK called “reliance,” which I imagine you’re aware of as well, where if multiple art market participants are in a transaction together, it is possible that they could rely upon each other’s AML checks. But there are caveats where if one art market participant relies on a different art market participant’s AML check that actually the one relying upon the other is still liable for the quality of the check. And furthermore, the one relying still needs to know the identity of the end buyer. That could change in time, but at the moment that’s what’s laid out in the guidance.
Steve Schindler: Well, what kind of proof, if any, is necessary- let’s talk about the sort of chain of beneficial owners, because it’s easy if I come into the gallery and I say, “I’m buying a work of art,” I give you my passport, and you scan it, then we’re good. But then I say, well, “I’m not buying it, but you know, XYZ Panamanian company is buying it.” You say, “Okay, and who is the owner of that?” I say, “Well, it’s ABC Gurnsey company.”
Chris King: Yeah. You need to follow those transitive ownership relationships all the way through.
Steve Schindler: And how- when you say follow them through, what exactly does that mean from the art gallery’s perspective? Do they then have to do searches on corporate filings? What has to happen?
Chris King: Yes. They have to do searches. Now, some information about company ownership is freely available through places like OpenCorporates and things like that. Some isn’t freely available, because you have to go to the appropriate company registry and pay them. Dealing with complex nested corporate structures is I think something that would give most art dealers fits, trying to do, and frankly, I know from experience that it gives banks fits, trying to do it. What we have tended to say to the people who’ve signed up for our platform is the best way to deal with this, we think, is to set the expectations upfront. So say to somebody, if they know the customer is buying it for themselves, say pay from a bank account in your name, because if it comes through a company, then we’re going to have to do due diligence on the company, which is stress for you, it’s stress for us.
If somebody wants to pay through a company in the British Virgin Islands, that’s owned by somewhere in Panama, then what I would say is that’s something that the dealer would probably have to take on a bespoke EDD, enhanced due diligence, company to do that work for them. And it had better be a damn great sale, because that kind of research is complicated. If you’re selling an old master for £25 million, then perhaps that kind of corporate structure buying it makes sense. But if somebody wants to spend £20,000 on a painting and buying it through a trust in Panama, then the answer would be well, just transfer the money from your own personal bank account. Thank you very much. Everybody is subject to the same law. It doesn’t matter whether you are a one-woman dealership or Christie’s or Sotheby’s, you are still subject to the same law. However, the regulations do explicitly say that the effort you are prepared to put in, and the amount of stuff you have to put in is proportionate with regard to the size and nature of the relevant person’s business. So if you are a single woman, art gallery, you would not be expected by the regulator if you were audited to go to the same extent as if you were Christie’s or Sotheby’s.
That said, if you’re a single person gallery, and you sell a painting for £20,000, you would be expected to do an awful lot less due diligence than if you were selling a painting for 5 million. Now this is not so much laid down in legislation. It’s more laid down in the approach that is right through the guidance, which is taking a risk-based approach.
Steve Schindler: I understand what you’re saying, Chris, and I guess I still- if I’m a gallery, how do I know what diligence is appropriate from say £20,000 to £5 million in sales. It sounds to me like it’s a very squishy kind of concept.
Chris King: It is squishy, and the whole take a risk-based approach concept drove Susan and I completely bonkers when we started off talking to HMRC.
Katie Wilson-Milne: This is how lawyers feel all the time with these facts and circumstances tests. You under- the client’s like, “well, what’s going to happen?” And you’re like, “I don’t know, because it’s a facts and circumstances test.”
Chris King: Yeah. So basically, because we would say, what would you do under this circumstance? And after about six months of these conversations, we suddenly had this dawning realization that HMRC are not going to say you should do X. They are not going to be prescriptive about it. Because one of the things is that they can’t know all the information the dealer knows. They don’t know the amount of transaction. They don’t know anything about the history of the artwork, they don’t know anything about art. They have no idea of the history of the relationships and so on. The thing that we have always said is that art dealers are bloody good salespeople. Art dealers have got very good antennae for other human beings.
I remember having conversations with friends of ours long before this legislation came out, talking about the kinds of rich people that would come onto their stand at an art fair. And you would hear stories about, “Oh, well, this Russian woman came on and you know, she paid money from the British Virgin Islands and wanted it delivered to an address in Moscow.” And it was all about, well, a kind of shrug, and this is what rich people do. And they have their own reasons for doing that. But our approach is, as I said, we think that art dealers generally are very good salespeople. The point about the risk-based approach I would say is if there is something about this transaction that makes those antennae twitch and makes you go, “I’m not really comfortable about this,” then that’s what you need to pay attention to rather than just saying, “oh, this is what rich people do.” So that’s the thing, if there’s something about it that feels off, you need to pay attention. And one of the things we regularly say to our users is you are not expected to be detectives. You are not expected to establish the ultimate ground truth about this person. You’re expected to do the best with the knowledge that you can get using the tools available to you, and make a judgment based on that. If it turns out that Vladimir is the world’s greatest money launderer, but when you checked him yesterday, it was all fine. It’s fine.
Katie Wilson-Milne: The thing that I think is so difficult is what feels funny or suspicious outside of the art market to a layperson and what feels funny and suspicious to someone who’s been a dealer for 30 years is totally different. I mean, this is something that comes up on almost all of our podcasts, is that Steve and I try to bring the juxtaposition between a non-art world perspective and an insider art world perspective. Because it is fascinating how different those are. And one thing- when this topic has come up in the last two years in the United States and is rolling out to the antiquities market now, and soon to be to the art world, we think the public is shocked by these reports. They’re like this behavior is so insane and like so secretive and for what reason and it’s so unusual. I mean, it’s very similar to reading about the Panama Papers, right? Most of which was perfectly legal, and anyone who works in the high net worth field, isn’t surprising at all. That is absolutely how the wealthiest people in the world operate, and it is normal for them. And if you are, let’s say, an adult child of a very wealthy family, who’s just working with the same tax and estate advisors that your parents have always been working with, of course you’re going to think it’s normal that all your assets are in these offshore trusts. So how do we create a norm or a normal, so that everyone’s on the same page about what feels suspicious or what feels off? Because it strikes me that’s not uniform and the regulator could have a very different idea of that than an art market insider.
Susan Mumford: I mean, the immediate thing that I would say to that is that it takes time for there to be new norms. If I shoot back to say 2006, when I had set up my gallery in SoHo in London, and I remember dealers in the West End talking about, “Oh, it’s outrageous that you can now see the online auction results.” That now suddenly my collectors were able to see this. And that was a culture shock at the time, not so much as this, but eventually it became the norm. Now, in terms of a consistent norm, there would never be complete consistency between say, AML legislation between different countries, but what we hope is that it’s at least close enough that it helps to ease the way for the multi-jurisdictional transactions.
Something that is fascinating is when we do talk with HMRC, sometimes some of the questions that come through from art market participants, or there might be a scenario that we’ve come across, somebody might call us and say, “What do I do in this situation?” And we’ll scratch our heads we’ll go, “Gosh, that’s a bit tricky.” What HRC does come back to is- with time and time again- is taking steps, documenting what they have done and with that, then making the decision. And there can be some objective discoveries as well. I mean, if somebody or a company is sanctioned, then clearly that’s a dead stop don’t transact with them. And to a very large extent, I say this because we have been watching what’s been happening with people in the art market, is that over time, they start to understand what they need to be getting at. Now, you could arguably say, some people are going to be better at this than others. From a purely business perspective, I can see a great opportunity for many galleries to be bringing in individuals who might be fantastic at administration, they’ve got a pretty good brain for compliance as well, and not trying to get existing people in their teams, necessarily, to be doing the compliance who might not actually have quite the right mind for it. And surely somebody with that sort of mindset could actually help that business run more efficiently and actually help to save people time who could be using their time otherwise. So I hope to see a new role in galleries coming up that won’t only be for anti-money laundering, but also just other administrative types of tasks that are not so, say, sales focused.
Katie Wilson-Milne: We very much hope that too, because those are the people who often deal with us. But in my experience that I think has happened a little bit with having a registrar position at a gallery, which is just a terrific idea. Those people are often not empowered, though, to really do a lot of this work, right? I mean, it’s the sales people who have the relationship with the client. The registrar does not have contact with client. So they’ve got to go through the salesperson who probably wants to minimize these types of frictions and questions and- you know, until it’s really normalized. So one challenge we’ve seen just in- on not AML-related work is just how empowered are these, let’s call them registrar type positions to actually know what’s going on, you know, at the high end of the business and have any kind of say in it?
Chris King: There is a requirement in the regulations that says that the person who is either known- depending on which documents you look at- the nominated officer or the money laundering reporting officer, the person who is responsible for making suspicious activity reports to the National Crime Agency must have sufficient authority in the business to make decisions themselves. And it’s one of the things that we ask in our risk assessment. Does the nominated officer have sufficient authority to make decisions for themselves? And we saw early on some galleries trying to take them as junior gallery assistant and make them the MLRO [Money Laundering Reporting Officer] in the same way that they would take the most junior, most social media savvy assistant and make them responsible for all the email and GDPR stuff. And we have quite clearly said to those galleries, you must not do that.
Susan Mumford: Having said that, it’s quite a tricky line. I’ve tread quite carefully when that’s happened. And this is a situation that a number of your listeners could experience later on where there is someone in the business who’s kind of tasked with the responsibility of AML. And if I compare it to when I was first starting in the art world myself, I interned at a little photography gallery in London. I then became a kind of sales assistant and they said, “Oh, Susan, do all the PR.” Well, when we were in our early days of ArtAML I came across somebody pretty similar age to what I had been back in my experience, being lumped with all the PR. I did okay with it. But instead of being lumped with PR, this person had been lumped with the task of AML. And I was really concerned for her. And I just thought, I don’t know how somebody who’s just come out of university could possibly be able to handle this task. It’s not to say they’re not capable or not intelligent, but understanding taking that risk-based approach and understanding what needs to be done if there’s suspicious activity and having the- rather lacking the autonomy to be able to make decisions. Or turn around to a client and say, “We’re not going to be able to proceed with the transaction,” and not tell them why perhaps. And not have-
Chris King: You’re not allowed to tell them why.
Susan Mumford: Exactly, you’re not allowed to tip off- so we’ve seen a little bit of that. And I as CEO of ArtAML have tread very carefully to not offend that person in that role, but rather to find ways of communicating with them and helping them to understand somewhat through our own training that we run to involve other people, to involve senior management, to help senior management understand how serious this is. And we know that the dealers- we know that the directors are really busy, and they’re running around. But this is something for which they have some serious responsibility and if they get it wrong, if they don’t do what they’re legally obliged to do, they could end up with serious trouble. So we try to find ways of communicating that to people, but not everyone in the art market gets it. And it is a matter of time. I mean, if I think about what I was saying just a few minutes ago, that we do see that after people have been doing this for a while, they do understand what they’re really trying to get at. Not from a black and white, here’s an exact list to check-off. Sure, they can choose to take a simplified due diligence approach, a standard due diligence approach, and enhanced due diligence approach, they can do that, but to get the thinking takes experience and further to that, what we also see happening is that when they overcome the initial hurdle- and it does take time to understand how AML works, what they need to do to be comfortable with the process. But they actually, in time, we’re able to work this into part of their sales process. So instead of being surprised when suddenly money has come in from an offshore bank account instead they’ve actually asked the question upfront as part of the sales process.
And it could be that they’re working with- the sales person and maybe takes the initial information securely gets sent into ArtAML. And if they have a business where they have a little bit of a structure, they might have somebody who’s much more kind of office-based who’s then able to take it through the rest of the process, but they would ask upfront. So is it yourself buying or is it perhaps company and where will you be sending the payment through from? And if they learn to ask those questions, it actually starts to preempt it, and actually starts to make a much smoother process. So we’ve now seen that with some of our clients, who’ve not still been doing this for that long. Our kind of first clients have been doing this for maybe 15, 16 months at the time of recording, in terms of using our system, but they’re definitely getting there with the process. And I think that they should be confident, those individuals who are doing their utmost. They’re not expected to be a detectives, but they certainly- if they were to be audited, they would be seen to be doing their best. And let’s see how the rest of the industry gets on.
Steve Schindler: Alright, and I am kind of curious, because we’ve talked before on this podcast about this concept of vulnerability to money laundering versus an actual problem with money laundering. And I think that’s sometimes very difficult to assess in the art market, but I do wonder whether it isn’t sort of smaller to mid-size dealers that might actually be more vulnerable because they’re selling works that are not visible trophy works. You know, there are certain works of art that are just going to have so much attention brought to them anyway, that it may be not the best place for someone who’s trying to hide money to be operating. But it may be in the somewhat lower end of the market- not at the very bottom, but somewhere in the middle- that there’s vulnerability.
Susan Mumford: That, in fact, speaks to one of our concerns about artists. That actually might artists be an easy target? So if we take that as an example, with a parallel to the smaller art dealing operations, but if somebody were to go to an artists and to say, “Oh, you want to sell that piece for £3,000? No, no, it’s worth a lot more from that. I think that you should be selling that for £9,000 and I’m going to be your first customer to buy that. And by the way, I’d like to commission this other piece as well.” You know, what’s an artist going to think? “Oh my gosh, that’s fantastic and that’s amazing and that’s great.” And actually, when we were in our very early days of ArtAML, we were having a lot of conversations with dealers in the UK who were just shocked that this thing was coming in. I recall people reporting just from casual conversation, but saying to me, these kind of stories of, “Oh, this person got in touch with me.” And these were tiny operators, sort of one person businesses saying “oh, this person got in touch and this happened and this happened,” it was clearly not right. And so I just got out of it.
And I recall having those conversations and thinking, yeah, it does actually seem as though there are some attempts at various pieces of crime, not necessarily money laundering, but whatever crime that they might be. And I know various real-life examples where these small businesses have been targeted in different ways. So if they are, why would they be targeted in this way as well? So I think you make a fair point with that.
Chris King: But I think there’s another aspect to this, which is what is the purpose of the anti-money laundering legislation? And I think that the purpose of the anti-money laundering legislation is not to catch money launderers. It is to deter money launderers from laundering money through vulnerable sectors. So it may well be that because art dealers are now regulated, that those kinds of mid-level dealers, that Steve, that you were talking about, won’t be targeted by money launderers. They might instead go to jewelry or vintage cars or something like that, because they know they will be asked those questions.
Susan Mumford: And this might actually be a good moment for me to say what the National Risk Assessment 2020 did state. So the UK does this risk assessment every few years. It was really early days, obviously, for the art market being regulated. They do say in this- I’m reading it verbatim, “although there is still a lack of complete understanding of the mitigations and vulnerabilities in the art market, the ability to conceal the beneficial owners and final destination of art make it attractive for money laundering.” So that’s really a two-point statement that they made. It was the concealment of beneficial owners and the final destination of art. So I thought that was interesting.
Steve Schindler: Has anyone tried to assess now that it’s- we’re going on almost two years early January, whether or not compliance is increasing? Is there any kind of empirical to look at whether or not these regulations are actually working?
Susan Mumford: I mean, I wouldn’t say that we know how much they’re working as yet. It’s still too early days, and we’ve had the pandemic on top of it. If you look at the register of regulated businesses that are actually under the sector art market participants, you can access the public register on gov.uk. That number of registered businesses is certainly increasing. And if you do just think about a quick timeline so you had May 2018, 5AMLD was decided upon. Then December of 2019, the UK passed the law. January 2020, it became law. They were then saying that to continue transacting as an art market participant, you had to register as one by the 10th of January, 2021, but because the pandemic hit in March of 2020, that was then delayed until June, specifically the 10th of June, 2021. Where we are at the time of recording now is that essentially although the art market was regulated, and they were legally obliged to be conducting these checks and to be compliant, the reality, whether it was wishful thinking or misunderstanding, is that- in our experience and it is anecdotal- that a majority of our businesses really waited until June of ’21 to do much about it. There were the early adopters. What that means is that you had right before summer started people kind of rushing in and signing up and coming onto our platform and starting to think about doing this and working out who needed to be registered and who needed to be trained and what that meant and what on earth is a risk assessment in the first place? How does that vary from what they’re doing when they’re actually checking a transaction, a customer, etc.? You then had the summer, and then for the first time in a year and a half, you have busy art season. So of course people are distracted and finding it difficult to actually do anything about AML for those people who went, “Oh, I’ll just wait until after summer to register.” So while I think as of autumn 2021, we still have a lot of people kind of going, “Oh, I’m going to get to it.” And when they start to hear from HMRC, then they start to put more in place. It probably won’t really be until next year that we have a lot of the art market really on board at a guess.
Katie Wilson-Milne: Yeah, and isn’t the question of compliance dependent on what kind of enforcement there is? We’ll know more about the compliance when there’s enforcement. And I don’t know if- has there been any enforcement, or what are you seeing in terms of how active HMRC is being?
Chris King: As far as we are aware, there has been no enforcement. That’s not to say that people haven’t been audited and given a slap. If people are sufficiently sanctioned by HMRC, their names of their business and the offenses will be published. But we’re not aware of any art market participants having been sanctioned. Then of course, it’s not something people would be vocal about if they had been.
Susan Mumford: And whereas there have been a lot of suggestions about self-regulation- and in fact, I was on a panel discussion just recently about this, where someone was saying, they were talking about NFTs and saying, “oh, people should just self-regulate, then maybe we don’t have to be actually regulated”. And my response was, and bearing in mind I come from the market, people won’t do anything until they have to. And actually the core of it, are we helping to attract some new money to the art market? I hope so. Are we knowing that art is finding good homes when you’ve done these checks? I certainly hope so as well. Do people do anything about it when they don’t have to? No, they don’t. And what has been suggested by HMRC is that one of the approaches that they will take is to do spot checks at some of the UK art fairs. That we understand. And we do know that they’re following up the registrations at the moment. And we do know that there was a campaign earlier in 2021 before the June ’21 deadline to register as an art market participant, where they were getting in touch with art businesses and saying, “Do you know that you need to register? You need to register by this date. You need to put these things in place.” And the more that they communicate, the more that we expect people will actually do something about it.
Chris King: And I think you will see a very strong correlation between enforcement and compliance when the first major prosecutions or sanctions happen. Because what will happen is the regulator will probably find somebody big who’s not compliant properly, somebody medium, and somebody small and squish them all and put fear of God into everybody else. And then all of a sudden, everybody will take it very seriously, because that’s what’s happened in other regulated sectors. Once somebody gets squashed, everybody else realizes how serious this really can be and they pay a lot more attention to it.
Susan Mumford: From my perspective, one of the things that will be the most helpful for this is when actually you have more major player jurisdictions actually conducting AML checks. And Chris and my take when we were first considering starting up ArtAML was very much so let’s be rational about this. We know that many people in the industry decided to fight it, and our take was very much so this is the reality of doing business in the modern marketplace. Let’s work with it. And so when you have both sides of the Atlantic needing to do this, it means that actually it is going to help to smooth a way for multi-party transactions.
It’s actually one of the major complexities or one of the major challenges we face at the moment. When, let’s say, somebody in the UK has an intermediary in the States representing their collector, they can’t actually use what we were talking about- what’s called reliance- on that intermediary in the US, because they’re not actually regulated under equivalent legislation.
So at the moment, there are a lot of sticking points that let’s hope in five years time will be more or less ironed out. As we’ve seen with people being more comfortable with other pieces of transparency in the industry, that this in time comes to be more accepted. And that actually people who currently feel that their business model is contingent on a lack of transparency that they realize that they do actually bring other value to the table.
Katie Wilson-Milne: Okay, well we hope for that. Thank you both so much for joining us. It’s been a great discussion.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback firstname.lastname@example.org. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson, and finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.