Katie and Steve speak with Swiss art lawyer Florian Schmidt-Gabain about Switzerland’s (very) recent establishment of an “Independent Committee for Cultural Property with a Burdened Past” that will hear ownership disputes about Nazi-looted art as well cultural property acquired during the colonial era. They discuss why it has taken the Swiss so long to establish a process like this, the unique role of Switzerland during WWII, the challenges of the mostly voluntary and non-binding process, and the many questions that remain open as implementation unfolds.
Resources
https://schmidt-gabain.ch/en/personen/dr-florian-schmidt-gabain
https://www.nytimes.com/2021/10/11/arts/design/kunsthaus-zurich-buhrle-collection.html
https://www.kunsthaus.ch/en/besuch-planen/ausstellungen/buehrle-neupraesentation/
Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Episode Transcription
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. How are you?
Katie Wilson-Milne: Hi, Steve. We’re back.
Steve Schindler: We’re back. Yes, we’re, well, we’re lucky here today to be joined by a colleague, a Swiss colleague, Florian Schmidt-Gabain, who is a partner in the firm of Schmidt-Gabain AG, with offices in Zurich and Basel, Switzerland. Florian specializes in art law, entertainment law, and strategic estate planning. In addition to his work as a practicing lawyer, Florian teaches art law and restitution law at several Swiss universities. He regularly publishes in academic journals, writes for daily newspapers, and gives numerous- and I’ve seen some of them- presentations on topics related to his practice. So welcome to the podcast, Florian. It’s great to see you.
Florian Schmidt-Gabain: Yeah, thanks for having me.
Katie Wilson-Milne: So the occasion of your inaugural visit to our podcast is the new committee or commission that’s starting in Switzerland, dealing with both cultural property issues coming out of World War II and also the colonial context. So maybe we can start, Florian, by you telling us a little bit about this committee. You can give us its formal name and just what it’s designed to do.
Florian Schmidt-Gabain: So the formal name is Independent Committee for Cultural Property with a Burdened Past.
Katie Wilson-Milne: Yes, I’m glad it took all the words it needed.
Florian Schmidt-Gabain: It sounds very legal, but they were looking for a name that covers cultural property that is both related to World War II and to the colonial era. So they came up with that name, which actually is my own English translation of the German and French original. So the German original is Historisch belastetes Kulturgut. You could also translate as Historically-Burdened Cultural Property, but I preferred to translate with Cultural Property with a Burdened Past.
Steve Schindler: I like that.
Katie Wilson-Milne: Yeah.
Florian Schmidt-Gabain: In short, the committee is an official body consisting of nine to 12 members, and it will hear disputes over Nazi-looted art or cultural property that was removed from former colonies during colonial times. And the committee will issue nonbinding recommendations on how to resolve those disputes. So this will be a recommendation for a restitution or a non-restitution, but it can be also some middle ground solution to sell the work and to split the proceeds with a certain relation. So there’s no formal limit as to the recommendation issued by the committee.
Katie Wilson-Milne: How does the committee decide what cases it’s going to hear?
Florian Schmidt-Gabain: There is a distinction between the cases that can be brought to the committee. So the general rule is that only if both parties agree, the committee will hear a case. But there is one important exception where a party can unilaterally invoke the committee. And the requirements for the exception are that you have an artwork that is Nazi-looted and that is located in a museum or collection financed with public funds. So in this case, only one party can seize the committee, and then the other party is bound to be part of their proceedings.
Steve Schindler: So notwithstanding the fact that the second party, the museum with public funding in Switzerland, is bound to participate in the proceedings, the results of the proceedings are still non-binding, right?
Florian Schmidt-Gabain: Yes, they are still non-binding.
Steve Schindler: Okay.
Florian Schmidt-Gabain: It’s a governmental body. The commission members are elected by the Swiss government, but the requirements, they are non-binding.
Katie Wilson-Milne: But presumably, the…
Florian Schmidt-Gabain: The committee will apply the Washington Principles and also the Terezin Declaration, which foresees these fair and just solutions that are non-binding.
Katie Wilson-Milne: And maybe we can talk more about that and the specific elements or requirements for each type of proceeding in a moment- but just to be clear that I assume the requirement for the person bringing the proceeding is that they be some kind of demonstrated or at least asserted heir to a once rightful owner.
Florian Schmidt-Gabain: Yes, there is one requirement that is valid for all proceedings in front of the commission, which is that the party who brings a case must bring prima facie evidence that they once were the owner of the artwork or the cultural property.
Katie Wilson-Milne: Or the heir. Yeah, the heir of the owner.
Florian Schmidt-Gabain: The heirs or the owner. And this requirement is somewhat unclear, and I think it will take some cases to have a better understanding of this requirement, especially on how much evidence the committee will actually be looking for, for that prima facie evidence to be fulfilled.
Steve Schindler: Right. And just, when does the Independent Committee start hearing cases? Because it hasn’t yet, right? It’s just been in the process of formation. When will the first case be heard, do you think?
Florian Schmidt-Gabain: It is generally assumed that it will be 1 January 2026, but the committee, it’s already established from a legal point of view. So, there is now the ordinance that established the committee. And in theory, you could try and bring the case right now, but I think it just would sit on someone’s desk and no one would be really looking at it.
Katie Wilson-Milne: Have the committee members been appointed yet?
Florian Schmidt-Gabain: Not yet.
Katie Wilson-Milne: Okay, well, that would be a key step.
Florian Schmidt-Gabain: But there is a General Secretary. She has been in charge for more than half a year now. The post that she had before, she was the head of provenance research at the Kunstmuseum in Bern.
Katie Wilson-Milne: And so maybe, can you tell us a little bit about how the committee will actually work? So, I mean, what’s the submission procedure? Or do we not know how it’s actually gonna function? Is there gonna be testimony? What does it look like?
Florian Schmidt-Gabain: The committee has the right to give its own procedural rules, but they have not been established yet. They will only be established once all the members of the committee have been elected. There will be more clarity on the formal procedure once those rules will have been established. But for now, I can say that it’s gonna be kind of a contradictory proceeding. So, you will hand in a request, and then the request will be brought to the other party’s intention, and they will have the possibility to reply to the request. And then the committee, they also have the possibility to hear experts. And I think there will be maybe a second round of exchanges in writings. The claimant can reply to what the defendant said, and then the defendant will have another round countering what the claimant said in their second pleadings.
Steve Schindler: And do we know, Florian, yet whether these proceedings will be public, or whether the papers that are filed by the parties will be available to the public? Has that been established yet?
Florian Schmidt-Gabain: It’s very unlikely that the proceedings will be public, but what will be public is the recommendation. I’m not sure if they will issue recommendations with clear names or with aliases.
Katie Wilson-Milne: What is the power of this non-binding recommendation? I mean, it’s non-binding, right? So a museum doesn’t have to give it back. It’s not something the court of law can take as a piece of legislation it has to follow or precedent has to follow. So what is the power of the non-binding opinion? I mean, what can it really do?
Florian Schmidt-Gabain: You have the normative power of the factual. In German, the normative Kraft des Faktischen. So although no one can take this to the police and make them enforce the recommendation, there will be market forces that will be very strong, I think, for the parties to follow the recommendation.
Katie Wilson-Milne: Right.
Florian Schmidt-Gabain: Especially if you want to sell the artwork and if you did not follow the recommendation, I think this would really taint the work’s provenance and it would make it hard to be sold…
Steve Schindler: Right.
Florian Schmidt-Gabain: …on the open market with that kind of defect to it.
Steve Schindler: I would also have to imagine that if one of the parties is a government-funded institution, you know, funded by the Swiss government and that this is a committee that was established by the Swiss government, that there would be an awful lot of pressure for a Swiss-funded institution to comply with the committee’s recommendation.
Florian Schmidt-Gabain: Yes, especially in this case, it’s inconceivable that the defendants will not follow the recommendation.
Katie Wilson-Milne: It’s a clever thing that, you know, I think we should talk more about the law itself in Switzerland that doesn’t facilitate these types of resolutions well, but it’s a clever thing to use legislation, to use the law to create a market solution for a problem like this. Yeah, so it’s actually a really interesting model, I think, not replicable in the United States just because of our different museum structure and how the collections are owned, but just to…
Florian Schmidt-Gabain: On this point, it’s the Washington Principles that encourage nations who ratified the Washington Principles to establish such bodies as the committee. And as far as I know, the United States also joined the Washington Principles. So the United States, they would be encouraged by the Washington Principles, too, to establish…
Katie Wilson-Milne: Yeah. The distinction, which I think is important, is that, you know, you’re right, the Washington Principles, which maybe we can give some very quick background on, was a set of principles developed in the late 90s by 144 nation states who signed on to deal with the problem of restituting artwork and cultural objects that were displaced either through Nazi-looting or less direct means during World War II between 1933 and 1945, with the goal of not relying on legal formality and encouraging just and fair solutions on a more moral basis. So created a sort of moral guideline that nation-states signed on to in terms of how to deal with these claims and restitution to rightful owners or the heirs of rightful owners. Many people have commented that these principles, although they’re called the Washington Principles and they were developed in Washington, DC, were more successful, have been more successful in Europe, because of the level of control the federal governments have in Europe over their cultural sector.
And that’s because there’s usually a cultural ministry. Museums tend to be state-owned, state-funded. Collections tend to be state-owned. So the government itself has a lot of control over what happens to those collections. In the United States, as we know, that’s not the case with the exception of the Smithsonian, which is actually has a more complicated structure. Our museums, our private museums, they’re not run, owned, controlled by the federal government. And so while the federal government can set policy and say, the state department can say, this is our policy, museums should think about this, there’s no legal mechanism to do anything with those collections or require those institutions to engage in voluntary proceedings. I do think that’s changing ethically and morally in the US, too, where we have a number of ethical organizations and membership organizations that govern museums on a voluntary basis that encourage the same type of principles, the same type of engagement. We see more provenance research, but it’s not centralized in the same way as in Europe. So a body like this, I think, it would require a much bigger structural change in terms of the government’s relationship with these private organizations.
Steve Schindler: Yes, and obviously we see…
Florian Schmidt-Gabain: Under the current administration, I don’t think that this will change…
Katie Wilson-Milne: Under any administration, honestly.
Steve Schindler: Right, and we have obviously the situation here in the US with these private museums that have chosen to litigate over some of these claims.
Katie Wilson-Milne: Yeah, sometimes on the merits and sometimes not. And that’s obviously true in Europe as well. I think, you know, one thing, Florian, I wanted to clarify with this commission, can parties’ rightful heirs bring claims or proceedings where the artwork is held in private hands, or is it only if the works are held in publicly funded collections?
Florian Schmidt-Gabain: You can bring the case only if the defendant is fine with it. But then, as I said, there’s this exception for artworks that are located in publicly-funded museums. And there is an uncertainty to the definition of what does it mean that the artwork is located in a publicly-funded museum. So there is no legal definition of “to be located.” And I think if you just look at the wording, it will also cover loans from private individuals that are on display in publicly-funded museums, because they are located in the museum. But of course, as a lender, you would argue, well, this can’t be true, because it’s very aleatory that I gave my work on a temporary basis to this museum, and now I have to face this trial and I can’t evade it. There will be disputes about this, and I think it will need one precedent to be sure loans fall under this possibility of the unilateral submission.
Steve Schindler: Right. And theoretically, it could also have a chilling effect on collectors who wish to loan works to museums if it places it now in this sort of mandatory committee hearing situation.
Katie Wilson-Milne: Yeah, why would they do that? When, if they keep it themselves, they have to consent.
Steve Schindler: I assume that the motivation for getting a non-governmental entity to consent to this committee proceeding is that on the other side of it would be a potential legal claim that might be brought in court against an owner who is private, right? Because you sort of asked the question, why would you agree to this if you don’t have to? But one answer might be, well, it’s non-binding, but it is a way to sort of try to deal with a potential claim rather than being in court and doing it in this more sort of informal way.
Katie Wilson-Milne: And well, and morally driven way rather than legally.
Steve Schindler: Yes, correct, right.
Katie Wilson-Milne: So, I mean, that’s…
Florian Schmidt-Gabain: Maybe I can come back on that point. One of the reasons why this committee was established was to get more fair and just solutions for cases that were sleeping until now. Because the owners of the artworks, they just did not want to find any kind of solution, and there was no way to make them change their mind. And now with the committee, there is the threat that they will be taken to the committee. And so this might facilitate amicable talks with owners and possessors that until now did not want to enter into any kind of discussion.
Katie Wilson-Milne: But let’s say you’re a private collector or you’re a family, you’ve had this artwork in your family for a decade or more, you’re not a publicly-funded institution in Switzerland. So, you have to agree, you don’t have to go before this committee, you have to agree to do it. Why would you agree?
Florian Schmidt-Gabain: I mean, you wouldn’t agree. If you don’t want to find a solution, you will not agree. But then there is that gray zone when you have a loan in a publicly-funded museum, that might…
Katie Wilson-Milne: …Be a hook.
Florian Schmidt-Gabain: Trigger the jurisdiction of the committee, although you are a private individual or a family.
Katie Wilson-Milne: Okay. Before we step back and give a little more background on why this came about now and what the situation was before, could you talk a little bit more about the details of these two different types of proceedings? So, we introduced the idea of this involuntary proceeding for Nazi-looted works that are currently held in publicly funded collections. So, that does not include any other cultural property claims. Does it include what we call flight goods or sales under duress during World War II? Or is it strictly, quote unquote, true Nazi theft, Nazi seizures?
Florian Schmidt-Gabain: No, it’s the wide definition of Nazi-looted.
Katie Wilson-Milne: Okay. So, the wording in the legal code that established the committee is that there must be a connection to World War II. So, it’s a really wide definition.
Katie Wilson-Milne: Incredibly broad, yeah.
Florian Schmidt-Gabain: So, there is no differentiation between looted art or flight art or any kind of other means that led to a dispossession of the work.
Katie Wilson-Milne: And do we have any guidance on how the commission itself will see those issues Like, will they, if their valuable artworks sold so that a family could escape to Brazil, or, you know, wherever else? Are those types of situations where the committee will recommend restitution, or do we know yet?
Florian Schmidt-Gabain: You have to make a distinction between the requirements so that the committee can hear a case and the recommendation that will be issued.
Katie Wilson-Milne: Right.
Florian Schmidt-Gabain: So, the requirement to hear a case certainly is fulfilled if someone sold their cultural property to finance their flight to Argentina. But this does not predict or define the recommendation that will be issued. So the recommendation that will be issued, it will consider all facts surrounding a specific case. And the fact that they received a certain kind of remuneration for the sale of the artwork certainly will be an argument against a full restitution without any compensation.
Katie Wilson-Milne: So in many ways, yeah…
Florian Schmidt-Gabain: So there is really no limit as to possibilities on what the recommendation will look like.
Katie Wilson-Milne: Right. I mean, it’s interesting, because those arguments are obviously what get made in court cases, but the law then, at least, you know, in the US, the sort of moral facts and outrage about a situation, butts up against the law of, let’s say, duress, right? Which doesn’t reward a victim for selling something for fair market value that they otherwise wouldn’t have sold, except for leaving the country, right? But that still may feel unfair to us and unjust. And so there’s this gap between what the law can provide and what we might ideally want people to voluntarily do, which I assume is the point of this commission.
Florian Schmidt-Gabain: This is the big advantage of the commission that it does not merely apply law. The law is one factor that will influence the recommendation, but there’s many other factors, ethical, moral factors, that will influence the recommendation. So law is a binary system, and with that commission, we have the possibility to step out of that binary corset of being right or wrong.
Steve Schindler: I like the binary corset image, but the- and it also sounds like that as part of that stepping out of the binary corset is the ability of the committee to fashion recommendations that aren’t just 100 percent to one party…
Katie Wilson-Milne: Right.
Steve Schindler: …and zero percent to another, but there are sort of opportunities to do something in between. So if you had a situation, say, of flight goods or goods where the situation was sort of less clear, there would be a possibility of, say, recommending that the work be sold and that the proceeds be divided in some particular way so that the owners who may have purchased them, their work and good faith might also be compensated to some extent. Is that correct?
Florian Schmidt-Gabain: Yes, that’s correct. The committee, it reflects the general political system in Switzerland, because in Switzerland, we don’t have a system with opposition and government. We have a system where all the major parties form a joint government and they always have to find compromises on every single act that they will pass. It’s never a fight.
Katie Wilson-Milne: Yeah, it’s a very different framework.
Florian Schmidt-Gabain: One side against the other side.
Steve Schindler: Right.
Florian Schmidt-Gabain: So this is kind of in our culture that we always try to find a compromise that evaluates both sides of the dispute.
Katie Wilson-Milne: Can I ask then, what are the major differences with the voluntary proceeding in terms of the sort of screening elements of what will be heard or what won’t be? And I assume, or maybe I’m hopeful or interested, to see if there are a lot of colonial-era claims that come up, because that would really be a new use of these types of commissions, and see who will voluntarily agree to have those claims heard by this commission or if no one will. But could you talk a little bit about the difference with the voluntary proceedings?
Florian Schmidt-Gabain: Yes, so the most important requirement for the voluntary proceeding is that both parties agree to the case being heard by the committee. And then by the letter, it’s almost the same requirements for both kinds of proceedings. But in my opinion, it doesn’t make a lot of sense to ask the claimant to provide evidence that their ancestors owned the artwork. Because if the other party agrees on a procedure, then it doesn’t really matter if they owned this before or not.
Katie Wilson-Milne: And even if they prove they owned it, if the other party doesn’t, right.
Florian Schmidt-Gabain: They already say, okay, we are willing to go for a fair and just solution, and then we don’t want this to be killed, because you cannot establish a prima facie evidence of ownership. So I think it doesn’t make sense to apply this requirement to voluntary proceedings. And there is another requirement for involuntary proceedings that says that there must be no court proceeding pending or no court decision in the past regarding the object in dispute. And this requirement, in my view, also makes no sense for voluntary proceedings. Because the parties voluntarily decided that they want to receive a fair recommendation for a fair and just solution…
Katie Wilson-Milne: Try again, yeah.
Florian Schmidt-Gabain: …despite the fact that there is a court proceeding going on, or that there already has been a sentence issued.
Katie Wilson-Milne: Why would that ever make sense, even if it’s involuntary? I mean, these court proceedings, let’s say there was a court proceeding in the US and it was dismissed on statute of limitations or laches, or there was a court proceeding anywhere in continental Europe, which probably those claims are long dead and not able to be brought. So why would that matter if the case, let’s say, was adjudicated on some procedural ground, but not moral ground, and not looking at the facts and the merits of the case?
Florian Schmidt-Gabain: I asked this myself, too.
Katie Wilson-Milne: Okay.
Florian Schmidt-Gabain: I haven’t come up with a very good answer. I think in general with the provisions governing the committee, there is a kind of a lack of a systematic reflection of what that all means. I think it was drafted very quickly, and it was also drafted by Parliament and not by a special commission within the government that would normally prepare such provisions. So the people in Parliament, they were not necessarily lawyers, and so they drafted provisions that can be contradictory. There is no definition as to what it actually means that there must be no court proceeding. Does it mean that the same parties must be involved in the court proceeding and in the proceedings in front of the committee? Or is it possible that other parties are involved and only the cultural property must be the same? And then the question you raised, does it matter whether the court decided on the merits or whether the court decided that they will not take the case because the formal requirements are not met? And all those questions, they are not addressed in the legal provisions that establish the committee and there is need of some precedents to have more clarity.
Katie Wilson-Milne: I mean, that just seems contradictory to the Washington Principles, right? The idea that we’re taking this out of the legal context, we’re putting it into a moral context and asking the marketplace and society to recognize these new moral standards. So it’s bizarre that then attach these moral proceedings to the law.
Florian Schmidt-Gabain: It’s not very consequent to say that there is a proceeding based not only on the law, but also on the ethical standards and at the same time telling the parties, if you bring a claim in the court, then there will be no more competence of the committee.
Steve Schindler: Right. I mean, I could see contemplating a situation where there has been, you know, a full hearing of a case between two parties and a court has issued a judgment, which is binding- not on technicalities, as you said, but on the merits- that maybe the people who are thinking about this idea of a voluntary committee might say, okay, well, why are we going to spend time on hearing a matter that’s been fully heard and adjudicated and a decision that’s binding?
Katie Wilson-Milne: The parties can always decide to do something different.
Steve Schindler: They could, I suppose. But I have another question just going back to the different…
Florian Schmidt-Gabain: I agree with you, Steve, in if there is a binding decision on the merits, then why should the committee be able to overrule this decision?
Steve Schindler: Is there a distinction or thought given to- I mean, we’ve talked about voluntary, involuntary, but then also this distinction between works that fall under World War II Nazi-looted art, loosely defined standards for which there’s a lot of jurisprudence and the colonial art that was taken out of countries during colonial occupation. In many of those situations, we have not necessarily individual heirs that are making claims, but we see successive governments making claims.
Katie Wilson-Milne: Modern governments.
Steve Schindler: Modern governments to have the works returned. You know, we obviously see that here with famously with the Benin Bronzes. And so is there any kind of idea that in those cases, you could have a party that’s not necessarily an individual heir, but a government? And then how would they make a showing of sort of prima facie ownership?
Florian Schmidt-Gabain: In the provision, it only defines who the parties must be in the case of an involuntary proceeding. In the case of the voluntary proceeding, where both parties must agree that the committee hears the case, any kind of party is conceivable.
Katie Wilson-Milne: But I thought you said for both types, you have to do a prima facie showing of ownership.
Florian Schmidt-Gabain: Yes, this is the case. The wording says in both cases, you need to have a prima facie showing of ownership. But I think it makes less sense for the voluntary proceeding than for the involuntary proceeding.
Katie Wilson-Milne: Absolutely. And I don’t know how it works in the colonial context at all, right? I mean, first of all, that context is incredibly diverse. There’s a thousand different scenarios in which property trade at hand, some completely legitimately, there was still a market, willing buyer, willing seller, some outright theft, and everything in between. But in a context, you know, pre, let’s say, 1899, where there were no international standards about removal of cultural property during times of war or during colonial expansion. You know, I don’t know how anyone, any government, modern nation-state, which did not exist at the time, and it may have like little, a lot or little or no ethnic cultural overlap, you know, how they’re going to show prime of future evidence of ownership.
Florian Schmidt-Gabain: You didn’t have the concept of ownership. So how do you want to prove that you had ownership to a cultural property when this was not in your cultural sphere, that you could be the owner of a cultural property?
Katie Wilson-Milne: I just don’t see how it fits, but I’d being curious to…
Florian Schmidt-Gabain: Yeah, it doesn’t fit. And if the defendant does not want the committee to hear a case, they will just not agree. And if they say we want a recommendation for a fair and just solution, then they don’t care whether the other party is able to prove their former ownership or not. So that’s why this requirement just does not make sense in a voluntary proceeding.
Katie Wilson-Milne: It shouldn’t be a requirement.
Steve Schindler: Yeah. It just seems like in that sort of scenario, what this really is, is a form of mediation, because it is non-binding and it is perhaps two parties who can’t quite figure out what to do, have this impartial body, take a look at it and then make a recommendation. And it sounds like with respect to at least colonial art, that there’s a lot of room for development of standards and practices that we don’t know yet.
Florian Schmidt-Gabain: In cases for cultural property that was removed from former colonies, the defendants who accept the proceedings of the committee will be especially museums. I don’t think that private individuals who own cultural goods from former colonies will accept the jurisdiction of the committee. There may be exceptions, but I think the cases that we will see that will go to the committee for colonial-era removed cultural property will be cases from former colonial states against the Swiss museums, who have a certain kind of obligation to find those solutions.
Steve Schindler: And does this also include what we would call archaeological looting cases? Because there’s Nazi cases, there are cases of removal of objects from during colonial occupation, but then there are, of course, the many cases of items that have been removed from the ground and taken out of a country either legally or illegally and find themselves in museums.
Katie Wilson-Milne: Which are not in the colonial context.
Steve Schindler: Not colonial, right. Is that also part of the committee’s work?
Florian Schmidt-Gabain: No, this is not part of the committee’s work. There is a legal definition of what it means that the cultural property has a burdened past. And it says that it must be either a Nazi-looted object or an object removed during colonial times.
Katie Wilson-Milne: Yeah, so it doesn’t apply to just that.
Florian Schmidt-Gabain: Or everything else, loots from archaeological sites or loots during other wars, they will not fall under the scope of the committee and the committee will not be able to hear such cases, even if both parties would like to bring the case.
Katie Wilson-Milne: In the colonial context, is there still this ambiguity about works on loan to these institutions?
Florian Schmidt-Gabain: No, this ambiguity only exists for the involuntary procedure, because if both parties agree, then this is of no importance.
Katie Wilson-Milne: Well, it’s important if both parties agree, and the party is a museum who agrees, but they’re agreeing with respect to an object that was loaned to them. That could be a big problem, right? Because the actual owners of the…
Florian Schmidt-Gabain: Yeah, that’s a good point. I hadn’t thought of that in that context, but I think it would be quite daring of a museum to accept a case against the will of a lender.
Katie Wilson-Milne: With the work they don’t own, yeah. That would certainly end their loan program.
Florian Schmidt-Gabain: They would not receive anymore objects from lenders, if they take an object to the committee against the will of the lender.
Steve Schindler: So we haven’t really talked at all about the who is likely to be on the committee. I realize that those people haven’t been chosen yet, but are there certain guidelines or is it anticipated that the committee will be composed of people from different sectors or…?
Florian Schmidt-Gabain: The legislation only says that the members of the committee must be independent. But there is no definition of what independence means. According to what I heard from different people who are involved in the process of recruiting the members, the definition of independence is very strong. So it means that they don’t want members that have any interests in that field, in the field of restitution.
Steve Schindler: That’s interesting.
Florian Schmidt-Gabain: I think there will be no opponents of museums, there will be no exponents of the trade, there will be no members of Jewish associations, but there will be predominantly scholars and academics.
Steve Schindler: I see. And is it the General Secretary that ultimately gets to make the decision, or is there some other process?
Florian Schmidt-Gabain: It’s the Swiss government. So the Swiss government is comprised of seven ministers, and they have to find the majority of four ministers voting for each member of the committee.
Katie Wilson-Milne: There are a lot of unanswered questions, so we’re going to do part two of this podcast in like three years.
Florian Schmidt-Gabain: And I’m not sure if that idea to have completely independent members of the committee will work out.
Katie Wilson-Milne: Yeah, I’m not sure either.
Florian Schmidt-Gabain: Because the field of restitution is small, and Switzerland is a small country on top of that. So there are not many people that will qualify as a member of the committee. And if you qualify as a member, this does not mean that you want to be a member.
Katie Wilson-Milne: Right.
Florian Schmidt-Gabain: I think that remuneration will not be great if you sit on that committee. So maybe if they don’t find enough qualified members, they will change their minds on how to define independence. But I mean, this is just a crystal ball. How do you say it in English?
Steve Schindler: Crystal ball.
Katie Wilson-Milne: Crystal ball. We don’t have the crystal ball is the expression.
Steve Schindler: We don’t have one, but I think we probably will have to check back in January 2026 to see if this committee has actually been formed…
Katie Wilson-Milne: And how it functions.
Steve Schindler: …given the limitations on eligible members.
Katie Wilson-Milne: Because so many of the experts in this space work in provenance departments now at museums, or they’ve at one point worked in an auction house, or they are part of these advocacy organizations that are doing provenance behind the scenes. So it does seem like that would be difficult to find someone who’s absolutely purely untouched by one side or the other.
Florian Schmidt-Gabain: Virgin Mary.
Katie Wilson-Milne: Yeah.
Florian Schmidt-Gabain: Well, Virgin Mary.
Katie Wilson-Milne: It’s great in theory, not in practice. So a little bit out of order, Florian, if we could go back in time. I mean, first, the Washington Principles come out at the end of the 90s, right?1998 is the conference; the principles get promulgated. Why is this happening now in Switzerland? I mean, I think we also talk about the backdrop of what other European countries have been doing, the commissions that existed after the war, the commissions that have been started in the 90s and more recently. But why now in Switzerland? And correct me if I’m wrong, there has not been another commission like this in Switzerland hearing these claims.
Florian Schmidt-Gabain: No, there has not been any committee like that. And the direct trigger that led to the creation of the committee was the fact that Kunsthaus Zürich, the largest Swiss art museum, started publicly exhibiting the works of the Bührle Foundation, which happened in 2021. And Emil Bührle, who amassed the Bührle collection, he has been a controversial figure. He was once Switzerland’s richest person, and he made his fortune with selling arms and weapons to states. And he sold both to the Allies and to Hitler in Germany. And then he became that eminent art collector, and he also bought artworks from Jews that were fleeing Germany. And then some of the works of those cases, he settled immediately after World War II. But there are still people who say that not all cases that should have been settled were settled.
And especially the critics said in 2021, when the works were shown in a public museum, in Switzerland’s largest public art museum, that the fate of the Jewish people was not prominent enough on display in that exhibition. And this stirred a media wave within Switzerland, but it also created international coverage. The New York Times had an article, I think, on their front page entitled, “A Nazi Legacy Haunts a Museum’s New Galleries.” And the reaction of the Kunsthaus and the Bührle Foundation to this widespread media coverage was, let’s say, not ideal. Because they chose not to comment for many weeks and even months. And when they commented for the first time, they said, “there is no problem. We did everything all right.” And this just did not match public opinion. And then some people in politics said, we need to change something. We need to give the heirs of former owners of Nazi-looted artworks the possibility of bringing their cases. And so there was one parliamentary in the Swiss Parliament.
Jon Pult is his name. He launched this parliamentary initiative for the committee, and the cultural minister had an open ear for it. And he was about to resign after 12 years in office, and he kind of wanted this committee to become the last thing that he would do as a cultural minister. So this committee was set up rather quickly, too quickly, because they lacked a proper legal basis for it, and they discovered this only later. So they had the ordinance setting up the committee before there was a proper legal provision in the code voted by parliament. So that’s why it took quite a while for the committee to be really sure to be created, because parliament discussed about creating it only after government actually happened.
Katie Wilson-Milne: Yeah, that’s funny. So were there actual claims against the Bührle Foundation or the collection at this time, or was it just a general sort of feeling that this was a messy, complicated person and a complicated collection and there weren’t enough facts, but were there actual claims about certain artworks there, that they had been at some point the source of Nazi looting?
Florian Schmidt-Gabain: Yeah, there were certain claims at the moment and the Bührle Collection, shortly before parliament voted on the final bill on creating the committee or not, the Bührle Collection announced that they would withdraw a few works from the Kunsthaus, because there were ongoing settlement discussions.
Katie Wilson-Milne: Which is what we want, right? I mean, that’s a great outcome.
Florian Schmidt-Gabain: What we want, if we put it a bit more Swiss, is what the heirs of the former owners want, and I think also what the public opinion wants and what Swiss politic wants. This is true, yeah. And now at Kunsthaus, you have empty spaces where those works are happening. Who are the opponents to this new commission?
Katie Wilson-Milne: I mean, I assume there was some process by which people could…
Florian Schmidt-Gabain: The museums who lobbied against the creation of the museum. Kunsthaus Zurich, they lobbied against the creation of the museum, because they feared that museums would be expropriated in a certain kind of way if they had to join the proceedings against their will.
Steve Schindler: Right. Even though these are government-funded institutions, they still are in a position to oppose a government sponsored initiative. In other words…
Florian Schmidt-Gabain: The Kunsthaus Zurich has a complicated structure. It is an association, and the executive board consists of 11 members, of which six are official delegates of the city and the canton of Zurich. So the public has the majority in the executive body of the Kunsthaus, but there are also five privately-elected members, who are elected by the General Assembly of the Kunsthaus Association, which is comprised of about 25,000 members of Kunsthaus.
Katie Wilson-Milne: Wow, what an interesting structure.
Florian Schmidt-Gabain: Yeah, and the financing of Kunsthaus is also diverse, so they have a bit more than 50% coming from public funds, and a bit less than 50% coming from ticketing, from shop sales, from sponsors and private donations.
Steve Schindler: That museum, which is not on the federal level, it’s still covered by the sort of the non-voluntary type of proceeding?
Florian Schmidt-Gabain: Yeah, it doesn’t matter whether the funds come from the federal administration or from a cantonal or from a communal administration. It just matters whether these funds are public funds.
Steve Schindler: Okay.
Katie Wilson-Milne: So, the museums were the primary opposition. Was the public generally engaged with this?
Florian Schmidt-Gabain: I mean, not all of them.
There are many museums- they welcome. I think the majority of Swiss museums welcomed this new committee, especially the Museum in Bern, which had a very important role of changing the attitude towards those cases in Switzerland when they accepted the Gurlitt inheritance, and also the Kunstmuseum Basel welcomed, to my knowledge, the establishment of this committee.
Katie Wilson-Milne: What was the backdrop for these claims before- in Switzerland- before the development of this commission? I mean, what would an heir do? If they see a work of art in a museum in Switzerland, they believe it was in their family’s collection during World War II, then it’s somehow not passed down through the family, what was the legal recourse before this commission?
Florian Schmidt-Gabain: You only had one possibility. If you wanted to take it on a legal way, you would have to file a claim with a court, and then the court would decide according to the principles of civil law. You would have to prove to the court that you are still the owner today, or that you have a possessory claim to the object. This is quite difficult to impossible to prove nowadays, and that’s also the reason in Switzerland you don’t have these cases pending.
Katie Wilson-Milne: Why is it impossible?
Florian Schmidt-Gabain: I don’t say that it’s really impossible, but always depends on the case. But you would have to prove with a full level of proof that your ancestors were the owners or possessors of an artwork. This already can be challenging. And then there’s always the possibility that within the long periods from the Second World War or even pre-Second World War to today, there was a good faith acquisition in the meantime. And you know, then, if the artwork was not located in Switzerland all the time, but traveled through the world, different legal systems will apply. So you can- maybe the work was in America for 15 years, and then under American law, you lost the claim because of the lapse of time. Or maybe you, it was in Italy, where you can make a good faith acquisition, even if the work was looted, and so on and so forth. So this long period from the time the object was dispossessed to the time that it is now reclaimed creates a lot of possibilities why your claim will be dismissed.
Steve Schindler: Right. Can I assume that Switzerland also has a prescription period or a period after which a good faith purchaser might acquire a title or…?
Florian Schmidt-Gabain: Yes, for the good faith purchaser, we have a period of five years.
Katie Wilson-Milne: That’s so short.
Florian Schmidt-Gabain: Or until 2005. And as of 2005, this period was extended to 30 years for cultural property.
Steve Schindler: Oh, OK.
Katie Wilson-Milne: Oh, well, that’s interesting. But 2005 is a little late, right, to have impacted the Nazi-era claims. This limitation only applies to the good faith acquirer.
Florian Schmidt-Gabain: If you are in bad faith, your right to reclaim your property or your possession never becomes time-barred. So even in a thousand years, if there was no good faith acquisition in the meantime, you will have a valid claim.
Steve Schindler: I mean, that would certainly be a complicated piece of a litigation, even just for a museum or current possessor to establish their good faith, you know, might be a complicated…
Katie Wilson-Milne: Like, for the Gurlitt collection, there’s never been any good faith, so at least we know that it’s possible to bring a legal…because in many continental countries, Florian, as we’ve discussed, there really is a bar to these claims. They’ve elapsed. There’s no way to bring them on a legal basis, which is why so many countries have adopted commissions long before Swiss.
Florian Schmidt-Gabain: You know, another problem, if you go down the civil way line, it’s that in the cases where someone sold their property voluntarily, you have a valid sales agreement. As a prima facie, you have a valid sales agreement. And then if you want to say that title did not pass to the purchaser, you have to establish that the sales agreement was not valid. And there you have to say it was sold on the duress. And the fact that it was sold on the duress will annihilate the sales agreement. And this is quite difficult to prove, I would say, under Swiss law or under German law or under Austrian law.
Katie Wilson-Milne: We have that same issue here. I think the reason we see so much of this litigation in US courts is just because of this principle under common law that a thief cannot pass good title. So the good faith purchaser analysis is, to some extent, completely irrelevant for stolen property in a way that in Europe it’s extremely relevant to determining whether they’re good claims. So I think heirs do look for when artwork touches down in the US because there’s this possibility of suing in a way that they probably could not in other countries.
Florian Schmidt-Gabain: In Switzerland, the good faith acquisition is only a second line argument. So if you are the possessor of an artwork and if you face a restitution claim, the first argument you will bring is that you or your predecessor validly acquired title, because they purchased the object and that it’s not a question of good faith or bad faith. And only if the court can be convinced that the purchase agreement was invalid due to a sale on the duress, then you would invoke good faith. So it’s a double difficulty for claimant to be able to prove that they still have good title.
Katie Wilson-Milne: But today, you’re almost never suing the person during World War II who was sold to, right? I mean, the problem with these claims is- and the nature of good faith- why there’s always inherent unfairness in these disputes is that these objects have likely passed through many hands since World War II, right? They probably went to a dealer, then they were sold to another dealer, then they were sold to a collector somewhere else, and they were sold to another collector. So there’s so many people in the chain that, I mean, one, it’s incredibly likely that one of those people was a good faith purchaser, right? And didn’t ask questions and didn’t know and didn’t want to know.
Florian Schmidt-Gabain: Yeah. If only one person in the chain acquired title, then everyone else could have been in bad faith and no valid sales agreement, etc. Only if one chain member acquired title, then everything else doesn’t matter.
Katie Wilson-Milne: Right. Yeah. So that’s the difference.
Steve Schindler: Yeah. So hence the difficulty of bringing a claim in Switzerland, a legal claim, and the importance of the establishment of this committee.
Katie Wilson-Milne: Florian, can I ask, we’ve seen these kind of commissions both come up right after the war, let’s say in the 50s through the early 60s in different European countries. And then we see again, let’s say Austria or the Netherlands or Holland, have commissions that were, I guess, revamped or reinstated in the 90s and after. Why didn’t Switzerland ever do that after the war?I’m just curious why that didn’t happen as a matter of course.
Florian Schmidt-Gabain: Right after the war in the late 40s, Switzerland passed a special legislation regarding the restitution of artworks. And this legislation said that the rules regarding to a good faith acquisition will not be applied within the next two years. Immediately after the war, Switzerland addressed those questions. But then there was a long period of silence. The majority opinion was that Switzerland was neutral. Switzerland was not a war party. So that everything was okay in Switzerland during World War II. And then only in the 90s, this subject became more prominent when we discovered that there were a lot of dormant accounts in Swiss banks. I mean, dormant accounts from former Jewish account holders that were murdered in concentration camps. And the money was still all the Swiss bank account.
And there was a solution found to address this question of the dormant accounts. And in the same negotiations, I would say, there was also this question brought up of Nazi-looted art in Switzerland. And so there was a governmental commission installed to research Switzerland’s position in the Second World War. And there was also a chapter on artworks traded in Switzerland that had Nazi connections. And this was when the whole subject became important again. But then it took another 15 to 20 years.
Katie Wilson-Milne: Yeah, I was going to say two more decades, three decades.
Steve Schindler: Well, things move slowly.
Katie Wilson-Milne: And why is that?
Florian Schmidt-Gabain: Just because it’s that it’s often the case with the if you have these massive tragedies like World War Two, then the generation that comes immediately after it, they want to go on, they want to forget about it. And then it takes one or two more generations to really be able to reflect what happened. As I said, if this very specific Bührle Collection trigger at Kunsthaus didn’t exist, there would be no commission today. So it was really this moment in time, this event that created a window of opportunity for the people who wanted this commission to be created. And they seized that opportunity.
Katie Wilson-Milne: Yeah, it’s really kind of amazing how these things come about or just don’t. I mean, in reading about the sort of history of Nazi-looting and the movement of cultural property during World War II, you know, Switzerland plays such a primary role because of its importance in the art trade. And it’s just story after story, is, you know, either the Nazis selling off the art they looted in Switzerland at auctions in Switzerland, in fact, the most famous auction, or families, rich Jewish families, selling art to get out through Switzerland, moving the art to Switzerland, you know, or to Swiss dealers. It’s interesting that Switzerland’s role in that art market was so known, so utilized, and yet, you know, it’s taken till now to have the same kind of commission that, that I guess, you know, non-neutral countries have had.
Florian Schmidt-Gabain: I actually, I was the first art lawyer to ask for the establishment of this committee after the exhibition of the Bührle Collection. I published an article late in 2022, I think, where I said now it’s the time to establish this committee.
Katie Wilson-Milne: Right.
Steve Schindler: Great. But we’ll post the article with the show notes. Yeah.
Florian Schmidt-Gabain: It’s in German.
Katie Wilson-Milne: Well, people have Google Translate. They can figure.
Steve Schindler: It’s relatively easy now. All right. Well, maybe that’s a good place to end.
Katie Wilson-Milne: Yeah. Thank you so much. We look forward to part two in a couple years.
Steve Schindler: Yes. Thank you, Florian.
Florian Schmidt-Gabain: Thank you very much.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. 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.