Sotheby’s action dismissed for lack of jurisdiction: A Cyprus legal perspective
The return of looted cultural heritage is a sensitive issue, especially for countries that have long suffered from illicit trade of their antiquities, such as Greece, Italy, Egypt and off course Cyprus, a continuous victim of the 1974 Turkish invasion, during which cultural goods were systematically destroyed and looted.
During the past few years, these countries have become more active in adopting laws, identifying looted antiquities and pursuing legal measures against auction houses, possessors and art dealers. In 2018, Sotheby’s New York announced the auction of a Greek bronze horse figurine, allegedly owned by the trustees of a deceased possessor. The Greek State intervened and sent a letter asserting ownership of the figurine. The auction was postponed but a legal dispute started. Unusually enough, Sotheby’s and the trustees filed a suit against Greece before the Southern District Court of New York, seeking declaration of ownership.
Greece motioned to dismiss the action for lack of jurisdiction pursuant to the U.S. Foreign Sovereign Immunities Act (“FSIA”), however the Court agreed with the Plaintiffs that Greece lacks sovereign immunity because its action of sending the demand letter fell within the Act’s “commercial activity” exception .
Greece pleaded sovereign immunity alleging that the demand letter was connected to sovereign activity, ownership claim through patrimony laws: the 1932 Antiquities Act, which states that all antiquities movable or immovable found in Greece are the property of the State and the 2002 Law On the Protection of Antiquities and Cultural Heritage in General. The latter provides that movable ancient monuments dating up to 1453 belong to the State in terms of ownership and possession, being imprescriptible and extra commercium. Article 28 of the said Law states that any transfer effected without the Ministry’s permit shall be null and void and the movable monuments shall be taken without formalities by the State. Several interested institutions and countries, including Cyprus, filed before the Court of Appeals amicus briefs, in support of Greece’s position.
On June 9, 2020 the Court of Appeals issued its judgement and ruled for Greece, stating the following:
“We agree that the core challenged act in this case was Greece’s sending of the letter asserting ownership over the figurine. We disagree, however, that the act was undertaken in connection with a commercial activity outside the United States. The connected activity was Greece’s enactment and enforcement of patrimony laws that declare the figurine to be the property of Greece. The enactment and enforcement of such patrimony laws are archetypal sovereign activities and therefore do not provide the requisite connection to commercial activity that would authorize suit under the FSIA.
Because the commercial-activity exception was the only purported basis for jurisdiction, we reverse and remand with instructions to dismiss this action for lack of jurisdiction.”
The judgment is another legal tool in the arsenal of countries aiming to have antiquities returned. Auction houses could be deterred from accepting antiquities and filing fresh actions against foreign governments, while state authorities are encouraged to continue the tracing of looted antiquities and pursue their repatriation.
Post-judgement, both parties stand their ground. The Greek Minister of Culture claimed “a huge victory-a legal precedent” and expressed her commitment to work hard for the artifact’s repatriation, while Sotheby’s declared its disappointment but remains willing to keep on fighting.
What does this judgement mean for Cyprus’ ongoing legal struggle to have its looted antiquities repatriated?
The said judgement sets a very good precedent for Cyprus, as numerous looted artifacts dated on or even before 1974 end up every year in the American art market. Fewer auction houses or possessors are expected to file declaratory actions against Cyprus in U.S. Courts. Having state immunity on these claims is one thing and managing to repatriate an artifact is a totally different one. Cyprus will have to intensify its efforts and become even more efficient in tracing artifacts and then legally identifying their origin and ownership in order to have them repatriated.
During the past few years, several legal instruments for the combat of illicit trade on antiquities have been enacted in Cyprus. The 2016 Return of Cultural Goods Law harmonized the Cypriot legal order with EU Directive 2014/60, while directly applicable EU Regulations no. 2009/116 and 2019/880 complement the extensive network of international treaties ratified by Cyprus in the sphere of prevention of illicit transfer, import and export of cultural property. Transposition of the 5th EU Anti-Money Laundering Directive, which imposes obligations on persons trading or acting as intermediaries in the trade of works of art, is imminent. A Memorandum of Understanding is in force and was recently extended between the U.S and Cyprus, regarding the import restrictions on archaeological and ecclesiastical objects.
Nevertheless, the main legal instrument remains the obsolete Cyprus Antiquities Law, dated back to English Colonial times, amended several times. In addition to that, the Department of Antiquities is still part of the Ministry of Transport, Communications and Works, a highly unusual red-tape arrangement of mid-20th Century.
The Department of Antiquities strives to monitor the world trade of antiquities assisted by enforcement agencies, the Church of Cyprus and other governmental and non-governmental players. As art dealers and artifact possessors become more legally aggressive and illicit traders more difficult to trace, Cyprus Government has to be alert to face the legal challenges. Proving before a foreign Court of law that an artifact is Cypriot and it was stolen or illegally exported is always a complicated task posing jurisdictional, ownership and evidence issues.
Cyprus can be more effective legally-wise by enacting a modern Antiquities law to regulate the operation of a dynamic Department of Antiquities possessed with all necessary powers to fight illicit trade of artifacts. The transfer of the Department under the Ministry of Culture, where it actually belongs, shall contribute to the strengthening of its human and technical capital. A Ministry of Culture headed by the Competent Minister and supported by the Antiquities Department will be in a better position to promote this cause; coordinate action and discuss with International Organizations, EU Member States or third countries and achieve even better results.
Michail Kamperis
Ierotheou, Kamperis & Co. LLC
