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ART // LAW

W

By Chris Jenkins

hen Ralph Rugoff, curator of the 58th International Venice Biennale Art Exhibition, invoked the ancient Chinese curse “May you live in interesting times”, he was condemned in some quarters for repeating an apparently spurious saying. But there’s no doubt that the sort of uncertainty the quote represents is currently prevailing in the field of art and collecting as much as in politics and economics. So we consulted the experts for some thoughts about law, intellectual property and the likely effects of Brexit. We asked Hetty Gleave, a Partner at Hunters Law LLP, what were the key legal issues affecting the art world today. She said: “Arguably, what’s causing most concern is the introduction of the Fifth Anti-Money Laundering Directive, expected to be implemented into UK law by 10 January 2020, regardless of Brexit. “The art market is perceived as an easy target for criminals wishing to purchase art as a means of laundering the proceeds of crime. This directive applies to dealers, auction houses and other entities transacting in art and aims to tighten up the current requirements on money laundering and tackle the risks that are commonly associated with the trade. The directive will affect all non-EU buyers purchasing works of art at galleries, fairs and auction houses in the UK and thus requiring the seller to undertake the same level of riskbased due diligence enquiries on purchases amounting to €10,000, currently undertaken by the legal and financial sectors. Collectors should therefore expect to be asked for up to date photo ID, proof of current address and the source of funds being used for the new year’s transactions.” Risk analysis requirements will place an additional burden of scrutiny on sellers used to operating in a world renowned for its secrecy, trust and relationship-based transactions.

Brexit burnout But to return specifically to the subject of Brexit, what is the likely impact on the art market? Hetty Gleave again: “What is clear is that a weak pound has already attracted more foreign collectors to the UK markets and auctions themselves have been strong over the last 12 months.” But there are concerns are over issues such as restriction of the free movement of people (as the art world is notably multi-national), and possible changes to import duties. “The UK current import tax is only five percent, which is

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one of the lowest in the EU. If the UK leaves the EU Customs Union, imports from the EU will be treated in the same way as from outside the EU. The UK government could, in theory, lower the input tax below five percent which would again attract more collectors to the UK art market.” Hetty Gleave advises collectors to allow more time for exporting and importing consignments in the event that the UK exits without a deal, and recommends using experienced carriers and professional agents to deal with the paperwork.

Ivory issues Another issue causing lively debate is the implementation of the Ivory Act 2018, which introduces a ban on ‘dealing’ in elephant ivory. In cases where ivory constitutes only a small part of the object, some exceptions are possible, but the trade is already worried about the way enforcement will be carried out. “Dealers will be most affected by the Act”, says Hetty Gleave, “and while many agree that the poaching of elephant ivory must be stopped, a blanket restriction on the sale of antique ivory works is not seen as a solution. Activists also argue that a ban on elephant ivory only creates demand for other forms of ivory and are campaigning for an extension of the Bill to cover hippos, warthogs and narwhals. Recently a small group of dealers and collectors have mounted a challenge in the High Court claiming that the Ivory Act should not focus on antiquities.” The contentious issue of repatriation and restitution of art and cultural propert has been in the news recently, with calls for the return of artefacts of African cultural heritage, Nazilooted art, and human remains in publicallyfunded museums and collections. The European Parliament adopted the Regulation on the Import of Cultural Goods which is designed to control the import into the EU member states of certain items of cultural property, but museums argue that by acceding to one request for the return of cultural property, they open the floodgates to others resulting in the emptying of museums. “There is no easy answer”, says Hetty Geave, “but the debate evokes emotional arguments on both sides. “Museum directors can still rely on statutory restrictions that prohibit the return of items and, until they are allowed to do so, perhaps cultural collaboration between the museum community and the claimants will at least enable the full story to be told and the claimant’s voice heard”. 

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