Court Refuses Sotheby’s Request to Dismiss Forfeiture Claim

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by Peter K. Tompa

April 4, 2013 – A United States District Court in New York City has refused to dismiss a Government case to forfeit a Khmer Statue that was to be auctioned off by Sotheby’s Auction House. The Government seeks to return the statue to the Cambodian Government, alleging that it was taken from a temple complex during the war-torn 1960’s.

Sotheby’s effort to dismiss the case at the outset turned on questions of Cambodian law. The Government has alleged that the statute must be considered stolen under US law because it is Cambodian Government property under French Colonial Era law. Sotheby’s requested the Court to throw out the lawsuit because that law is unclear and because the Government did not allege that Cambodia actually applied that law at home.

After allowing the Government to supplement its Complaint, the Court concluded that the Government need not prove at this stage that Cambodia enforces its own laws at home and that the matter must go to trial. Summarizing the allegations in the Government’s case, the Court stated,

“Sotheby’s was aware of the origin of the statue, that it had been broken off at the ankles and it first appeared on the international art market during a period of rampant looting of antiquities from Koh Ker,” referring to the temple complex.
“Sotheby’s has a particular expertise in the works of India and Southeast Asia, including extensive experience in the sale of Khmer artifacts,” the Court wrote. “Sotheby’s consulted regularly with the collector and knew him to be the original seller of the statue in 1975. The collector knew that the statue had been looted from Koh Ker, and had trouble selling it in 1975 because many prospective buyers were unwilling to purchase it due to its lack of legitimate provenance and missing feet. Subsequent to import, Sotheby’s was expressly advised that the Cambodians had clear evidence that the statue was definitely stolen. Sotheby’s is alleged to have provided inaccurate provenance information and omitted information about the collector who acquired the statue in Sotheby’s communications with potential buyers, the Kingdom of Cambodia and United States law enforcement.”

The decision should be viewed with concern by collectors, dealers, and museums. It gives additional license to Government cultural bureaucrats to seek to repatriate artifacts based on unclear and obscure foreign laws. Another concern is that the Court has treated the obligation of a foreign country to actually enforce its laws at home not as an essential element of the government’s case up front, but as a defense that can only be normally adjudicated after the discovery process has been completed. As a practical matter, such a ruling will make it even more difficult for forfeiture claimants to defend their interests in seized property – most collectors, dealers and museums simply cannot afford the legal fees associated with taking a case to trial.

For more about cultural property issues, see the Cultural Property Observer.

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