On October 3, Washington DC–based Partner David Bowker and London-based Special Counsel Prof. Maxi Scherer joined a group of art law experts to discuss mediation, arbitration and other non-litigation approaches to resolving art and cultural heritage disputes. WilmerHale’s London office hosted the event, an annual symposium sponsored by the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center and the School of International Arbitration at Queen Mary University of London.
“WilmerHale was a natural place to host, considering the deep experience we have in this area,” says Scherer, an international arbitration specialist who also holds a professorship at Queen Mary. The firm has handled many high-profile art-related disputes for museums, galleries, universities and other parties.
Before an audience of more than 70 art-world professionals who were gathered in London on the eve of the annual Frieze Art Fair, speakers discussed the advantages and drawbacks to alternative methods of resolving often complex and emotional art and cultural heritage conflicts, which range from contract and intellectual property issues to clashes over human remains, such as a recent case that led a German museum to return a tattooed Maori skull to New Zealand, to restitution claims for art transferred during the Nazi era, such as matter concerning a Picasso painting that Bowker and New York–based Counsel Michael Gottesman recently won for The Metropolitan Museum of Art.
“These disputes involve human beings with different interests and priorities, and who may suffer from emotional and cognitive barriers that can impede rational decision making,” said Dr. Debbie De Girolamo, a senior lecturer at Queen Mary’s School of International Arbitration. “They’re not just about contractual obligations or ownership—ethics, heritage, issues of sovereignty and identity, retribution, punishment, and moral rights may all figure prominently in the discussion as well.”
De Girolamo participated in the symposium’s first panel discussion, which Scherer moderated, alongside former WilmerHale lawyer Lena Wong, now vice president and compliance counsel at Sotheby’s Auction House in New York, and Anthony Misquitta, general counsel at London’s Victoria and Albert Museum. The group shared stories of conflicts they had encountered in their careers, and discussed how mediation, negotiation and other forms of dispute resolution could allow for creative solutions that, in De Girolamo’s words, “work beyond corners of litigation to provide a meeting of interests, not only the acknowledgement of rights.” They also explored some of the drawbacks to these alternative methods—for example, how confidentiality requirements prevent the creation of published precedent or even widely known best practices on which lawyers can rely for guidance in future cases.
Bowker spoke as part of the second panel of the day, which focused on current trends in enforcement and art dispute resolution. He was joined by lawyer Gregor Kleinknecht, who specializes in resolving art disputes; Peter Moody, the principal at Red Pie Consulting; and moderator Dr. Heike Wollgast, the head of the IP Disputes Section at WIPO and co-organizer of the symposium.
Bowker emphasized the importance of aligning dispute resolution methods with the client’s ultimate goals, citing as an example his representation of a major New York cultural institution in a complex case involving multiple claims to allegedly looted antiquities brought by a foreign government. The institution’s “ultimate interest was not to have title to these works,” said Bowker. “It was having a preeminent collection” for the public to enjoy in this space, “being seen as a leader” in the field and maintaining a “clean reputation” as an institution of integrity. Mediation and negotiation allowed for an agreement in which “both sides came out ahead, and as a result the two have a relationship that is deep and real and to the benefit of both parties.”
Scherer and Wollgast staged the symposium as an across-the-Atlantic version of a similar talk held at Columbia University in 2017, at which she and Bowker also spoke. The firm’s presence in these cities makes sense for client growth, says Bowker: “London and New York, along with Hong Kong, are the premier art markets in the world, and this was a terrific opportunity for us to be present in those markets.”
Bowker notes that the firm’s art law practice has grown in recent years to include Partners Anjan Sahni, Peter Neiman, Sharon Cohen Levin, Counsel Janet Carter, Gottesman and others in New York; Partners Bill Lee, Mark Fleming, Felicia Ellsworth and others in Boston; Partner Martin Seyfarth in Berlin; Scherer in London; Senior Associate Laura Goodall in Palo Alto; and Partners Seth Waxman, Paul Wolfson and Jonathan Cedarbaum and others in DC.