In May 2018, the New York auction house Sotheby’s wanted to offer a small Greek statue shaped like a horse dating from the 8th century BC. One day before the auction, the Greek government claimed its right to the sculpture without giving valid reasons. However, the auction house didn’t cave in, and since then, a legal dispute has been raging that affects the entire art trade. At the heart of the matter is this question: Who has to prove the provenance of an ancient object? The auction house or the (supposed) country of origin? Let’s briefly rewind the complicated process.
How It All Started
On 14 May 2018, the aforementioned horse sculpture from the Geometric period was scheduled to be sold at auction. The estimate ranged between $150,000 and $250,000, the equivalent of €133,000 to €222,000. The piece was from the collection of Howard and Saretta Barnet, who had bought it in 1973 from art dealer Robin Symes. Symes has quite a reputation because he was involved in the illegal trade in antiquities. This was the main reason why the Greek government took notice of the object.
Greece demanded that the sale be halted immediately. According to Greek law, every work of art found in Greece is considered property of the state. As a precondition for legal trade, Greece requires an official export license. If that document doesn’t exist, the state assumes that illegal excavations and illicit export activities took place.
As a result, Sotheby’s withdrew the piece from auction; no collector would have placed a realistic bid on such an encumbered lot anyway. Then, however, the auction house took an unusual and, at least regarding the United States, unique step: it filed a lawsuit against Greece in June 2018. Sotheby’s claimed that the small statue was acquired lawfully and in good faith by Howard and Saretta Barnet 45 years ago. The auction house said that there is no evidence indicating that this particular piece was exported illegally, otherwise the burden of proof lies with the Greek authorities. Since Greece’s interference affected the trade activities of the auction house, Sotheby’s argued that the Foreign Sovereign Immunities Act (FSIA) must be applied. This act stipulates that a foreign state that usually enjoys state immunity may be sued in courts under very specific conditions, for instance, in the case that it was harmful to the commercial success of a company.
The case ended up in the US District Court for the Southern District of New York, and in June 2019 the court ruled in favour of Sotheby’s. Then, Greece took the case to the Court of Appeals.
On 9 June 2020, the US Court of Appeals ruled that Sotheby’s cannot sue Greece based on the FSIA. A state arguing on the basis of cultural heritage rights pursues sovereign rather than commercial objectives. This is an interesting academic separation of two aspects that ultimately coincide in everyday life. Which state wouldn’t also have an economic interest in its cultural heritage …?
What Does the Decision Mean for the Art Trade?
Greece is now working towards the return of the small statue and sees its position confirmed regarding future cases. Sotheby’s stressed that Greece didn’t provide any evidence indicating that the sculpture was exported illegally. Therefore, the auction house is considering further legal actions.
In the event that Sotheby’s will be successful, this might reverse the burden of proof and improve the situation of the art trade significantly. After all, several recent studies have proven that the illicit trade in antiquities repeatedly postulated by different media (and also by Greece) only accounts for a negligible proportion of the total trade. Assuming illegal action is in most cases nothing but speculation. Therefore, it would actually make sense for the country of origin to bear the burden of proof.
On CoinsWeekly, we summarised how the case started.
You should also read the interview with St John Simpson, Senior Curator at the British Museum, on the role of the illegal trade.