USA Trends and Developments Contributed by: Frank K. Lord IV and Sarina Taylor, Withers
for dealing with Nazi-confiscated art that became the framework for handling claims in many nations. The Washington Conference Principles stated, among oth - er things, that “steps should be taken expeditiously to achieve a just and fair solution” whenever artworks that had been confiscated by the Nazis and not sub - sequently restituted were identified. What followed in Europe was the creation of national bodies to examine the post-War restitution process and to create governmental commissions to handle claims to Nazi-confiscated art, primarily in national art collections. In the years that followed, these com - missions oversaw the publication of reports that laid bare the many failings of post-War restitution regimes, identified artworks lacking documentation of owner - ship during the Nazi era, and conducted investigations into specific claims that resulted in the restitution of hundreds of artworks. That work continues today. The USA took a different course. In most European countries, there is a Ministry of Culture, and museums are state-run entities whose collections are ultimately the property of the national government. In the USA, there is no cabinet-level agency devoted to culture, and museums are primarily private institutions that hold their collections in trust for the public. That leaves no real place for a non-judicial body at the federal level to handle claims. Instead, claims have been resolved either through out-of-court settlements or litigation. Claimants have had some success, but not as much as many hoped. In particular, litigation produced few victories for claimants, often because claims were either barred by the statute of limitations, a proce - dural rule that sets forth the time during which an action must be brought, or pursuant to defences like “laches”, which will defeat claims if a delay in bringing them has prejudiced the current holder of the property. The HEAR Act In response to the dismissal of claims by courts due to the statute of limitations, the US government enacted the HEAR Act in 2016. The findings of Congress as set forth in the HEAR Act identify statues of limita - tions as fundamentally unfair to claimants of Nazi-era losses: “The unique and horrific circumstances of World War II and the Holocaust make statutes of limi - tations especially burdensome to the victims and their
heirs.” HEAR Act Section 2 (6). One of the purposes of the HEAR Act was “[t]o ensure that laws govern - ing claims to Nazi-confiscated art and other property further United States policy as set forth in the Wash - ington Conference Principles” and other statements of America policy. HEAR Act Section 3 (1). The HEAR Act set the statute of limitations period at six years, but crucially, the period only began to run after “the actual discovery by the claimant or the agent of the claimant of” both “the identity and loca - tion of the artwork or other property” and “a posses - sory interest of the claimant in the artwork or other property.” HEAR Act Sections 5 (a)(1)-5 (a)(2). Speci - fying that the limitations period ran from “actual dis - covery” was important because limitations periods often begin to run when the claimant knew or reason - ably should have known of the claim, a moment that can occur before the claimant is actually aware of it. The requirements of the HEAR Act were designed to ensure that the limitations period began to run only after the claimant was fully on notice of the claim, meaning the limitations period starts only when the claimant knows what artwork was lost, where it is, and that they have a claim. This means that when the HEAR Act entered into force, more than 70 years after the end of World War II, the time to bring many claims for Nazi-era losses had not only not expired, they had not yet begun to run. Effects of the HEAR Act The effects of the HEAR Act are difficult to measure. The mere possibility that claims could be brought may have led to out-of-court settlements that were not publicised. What we do know is that less than two dozen lawsuits have relied on the HEAR Act to bring claims of Nazi- era losses that otherwise would have been untimely, some of which were already pending at the time of its enactment. But to the extent that the ultimate purpose of the 2016 Act was to see that artworks lost through persecution in the Nazi era were returned to claim - ants, it has been less successful. Of the cases that have been litigated to a final decision since the statute was enacted, only one, Reif v Nagy, 175 A.D.3d 107, 106 N.Y.S.3d 5 (2019), has led to a court finding in a claimant’s favour.
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