USA Trends and Developments Contributed by: Steven Schindler, Katherine Wilson-Milne, Thomas Kline, Eden Burgess and Aaron Haines, Schindler Cohen & Hochman LLP
Recent Developments in Nazi-Looted Art Restitution
tion issues, resulting in new guidelines – Office of the Special Envoy for Holocaust Issues, Best Practices for the Washington Conference Principles on Nazi- Confiscated Art, US Department of State (5 March 2024) (the “Practices”). At the time of writing, over 30 countries have endorsed the Practices. The Practices’ central goal is to encourage settle - ments that are more favourable to claimants, saying, “‘[j]ust and fair solutions’ means just and fair solutions first and foremost for the victims”. For example, the Practices recommend that all transactions involving persecuted persons between 1933 and 1945 be con - sidered involuntary, while also recognising that the “specific historical and legal circumstances in each case” should be considered. The Practices also dic - tate that “confiscation” should include loss through any form of misappropriation by the Nazi regime, or its allies or hangers-on, including forced sales and transactions conducted under coercion or duress. Notably, the Practices call for multiple changes to make it easier for claimants to pursue claims: the opening of private archives; the creation of specialised national panels to research and adjudicate claims; and attention to heirless and communal property. Countries in Western Europe have likewise attempt - ed to improve the claims process. Germany recently reformed its restitution process, including the estab - lishment of “a binding arbitration tribunal to adjudi - cate claims” and “allow[ing] claimants to bring cases without the agreement of a disputed artwork’s current holder”. The prior process proved to be inadequate in part because it utilised a panel with advisory (not enforceable) authority, and all parties had to consent to the panel resolving the claim. Switzerland likewise changed its restitution proce - dures after widespread criticism of Kunsthaus Zürich ‘s 2021 exhibition of the collection of Emil Bührle, an arms manufacturer and art dealer who acquired much looted art. In 2024, the country established the Inde - pendent Commission for Historically Contaminated Cultural Heritage, which has nine to 12 members, and the authority to make non-binding recommenda - tions for claims to Nazi-looted and colonial-era looted objects that pass through or are in Switzerland. This is
After World War II, the Allies returned stolen art and cultural objects to the countries from which the objects had been taken, including Germany. But as the world turned its attention to opposing the spread of Com - munism, the process went unfinished. As a result, claims based on the legacy of Nazi looting and World War II thefts continue to hang over the art market. The Washington Principles In 1998, representatives of 44 countries and several non-government organisations met in Washington, DC to address art looting issues, generating the Wash - ington Principles on Nazi-Confiscated Art (the “Prin - ciples”). The Principles were the world community’s first comprehensive attempt to address restitution of Nazi-confiscated property. The Principles encouraged museums to research their collections, publicise the results, and make known any works that could have been confiscated during the Nazi era. Most signifi - cantly, the Principles urged museums to find a “just and fair solution” to Holocaust-related claims, “recog - nizing [that what is just and fair] may vary according to the facts and circumstances surrounding a specific case”. The Principles were not intended to be bind - ing, but rather to establish best practices for dealing with objects that may have been displaced during the Nazi era. Results have been mixed. In Europe, where most museums are government-owned, the Principles have had considerable impact, particularly in Germany, France, the Netherlands, the UK and Austria, each of which formed specialised administrative panels to address Holocaust-related claims. In the US, howev - er, museums and other entities focused on whether a claimant could establish a viable legal claim, which typically requires provenance research and expert analysis of historical facts and complex legal issues. Improvements? Since their issuance, several efforts have been made to improve the Principles and develop more efficient and fair approaches to Nazi-era restitution claims. In 2024, the US State Department again gathered concerned nations to address Nazi-looted art restitu -
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