A recent loan to the National Gallery in London has grabbed headlines discussing the history of the paintingPortrait of Amalie Zuckerkandl, by Gustav Klimt, surrounding World War II and the persecution of Jews in Austria.  Somewhat puzzlingly, the coverage has downplayed the fact that that very painting was already the subjective of an exhaustive proceeding in Austria that denied restitution, a decision reviewed and affirmed by the Austrian Supreme Court.  Should a claim for restitution or seizure be filed while the painting is outside Austria, in the UK or the US, it could have a troubling effect on respect for final judgments, as well as unintended consequences for restitution claimants who may find their judgments collaterally attacked elsewhere.  As difficult as it may seem, the painting cannot be disturbed without putting a great deal more at risk.

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The Painting and the War

The factual background and dispute is complicated, and is drawn here largely from the decisions in Austria (which are in German, translations mine) and news reports.  The Belvedere Gallery in Vienna, a national museum and therefore property of the Republic of Austria, loaned the Klimt painting to be part of the exhibition at the National Gallery “Facing the Modern: The Portrait in Vienna in 1900.”  Fin de siècle Vienna remains, of course, an enduring subject of interest as the intersection of the imperial and the modern, and was a burst of creativity in art and design that remains influential to this day.  The Secession and Jugendstil artists still cast a long shadow on Vienna, a city of sparkling beauty and culture.  Few artists of that period are better known now than Klimt.  Also not in dispute is how Austria got the painting: in 1988, the aptly named art dealer Vita Künstler gave the work to the state (Künstler means artist in German).

What happened before that, however, and how she came to have it, is hotly contested.  The work appears on the very same property inventory of Ferdinand Bloch-Bauer that was the basis for Maria Altmann’s ultimately successful, and ground-breaking, victory first in the United States as to the amenability of Austria to suit under the Foreign Sovereign Immunities Act, and then in an arbitration in Austria that awarded the Portrait of Adele Bloch-Bauer to Altmann (it now hangs in the superlative Neue Galerie in New York).  So, it is believed that the Portrait of Amalie Zuckerkandl was likewise the property of Bloch-Bauer, who fled Austria for his life after the Anschluss with Germany in 1938.  Künstler bought the painting for 1,600 RM during the Nazi period.

The Arbitration

Altmann herself, apparently on the same theory as she had successfully laid claim to thePortrait of Adele, was party to an arbitration in Austria  about the Portrait of Amalie Zuckerkandl after the restitution commission of Austria rejected claims to the painting.  But Altmann, as heir to Bloch-Bauer, was not the only claimant in that proceedings.  The Müller-Hofmann family, heirs of the subject herself, Amalie Zuckerkandl, also made claim to the paintings.  They claimed (according to the Austrian Supreme Court at p. 5) that the Müller-Hofmanns were the ones who sold to Künstler, but did so only under duress (they too are Jewish).  Ironically given the location now of Portrait of Adele, Künstler’s gallery was also called the Neue Galerie.

The biggest remaining dispute was over how the painting had gone from the collection of Bloch-Bauer to the collection of Hermine Müller-Hofmann (Zuckerkandl’s daughter).  The painting was apparently commissioned by the Zuckerkandls, who then divorced, whereupon Amalie became a friend of Bloch-Bauer’s.

After Bloch-Bauer fled the country, his property was seized and registered with the Nazi government.  A Dr. Erich Führer was designated Bloch-Bauer’s “representative,” but interestingly enough Bloch-Bauer remained in contact with Führer, who was able to arrange an export license for a Kokoschka portrait of Bloch-Bauer himself.  But the Klimts remained in Austria.  Altmann’s representatives argued that the painting could not have come to Müller-Hofmann via Führer without duress; Bloch-Bauer had fled for his life and, they argued, none of his sales could have been free from undue influence.

Critically for this discussion, the panel rejected that argument.  It found, as a matter of fact and after weighing the evidence and credibility of the witnesses, that it was just as likely that Bloch-Bauer had asked Führer to sell or give the painting to Müller-Hofmann.  It rejected the idea that the 1,600 RM sales price was presumptively low for that time, which likewise doomed the claims by the Müller-Hofmanns in the same proceeding.

The panel clearly put the burden of proof on the claimant, but property rights in Europe are often quite different; a later possessor can have good title even if the earlier owner was robbed (as, the panel agreed, Bloch-Bauer undoubtedly was).  That is to say, just because whoever had the painting after Bloch-Bauer did not have good title does not mean that Müller-Hofmann could not later have acquired good title and passed it to Künstler.  The panel concluded, noting the considerable documents and witnesses, that:

“The most plausible possibility is that the painting may have been given by Dr. Führer to Ms. Müller-Hofmann at the inducement of Ferdinand Bloch-Bauer without exchange or consideration, with whom Führer was in regular contact.”

The panel also noted that Bloch-Bauer had bought the painting twice from Amalie Zuckerkandl to support her financially, as evidence support the idea that he later had it given to her family.  That is to say, he had helped her out before, and the panel thought it plausible that he would have done so again (particularly given the risk as a Jew still in Austria).  The panel then rejected both groups’ claim to the painting.  The Austria Supreme Court later affirmed the decision.

The foregoing is a far murkier trail than the one that the Portrait of Adele Bloch-Bauerfollowed.  It is tragic, and the panel may well have been wrong.  But it is beyond dispute that the claimants made their best case, and the panel weighed the evidence, and came to a decision.  Also important, as noted above, is that in many continental legal systems a later possessor can have good title, even if her predecessor did not.  Again, whether Künstler took the painting in good faith is a difficult question, but it is one that the panel addressed squarely on the merits.  After the Washington Principles of 1998, many museums have been criticized for asserting procedural defenses that leave the substantive questions of what happened unanswered.  But that is not what happened here.

The Loan, the Award, and Respect for Judgments

There have been rumblings that the UK ought to seize the Portrait of Amalie while it is Britain.  Jonathan Jones at the Guardian gives a good explanation as to why such a move would be disastrous in practical and political terms here (“This is clearly a daft request”).  And the fact remains that many of the voices cited in favor of seizing the painting were advocates and lawyers in the Austrian arbitration, which certainly speaks for their passion and persistence.  But what about the law?

Austria has come a long way.  It has established a national claims commission, and it agreed to the 2006 arbitration.  And it is a signatory to UNCITRAL, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the so-called New York Convention).  By any measure, the Altmann/Müller-Hofmann result is an arbitral award.  As a result, it is entitled to deference as a final judgment under the terms of the New York Convention: “Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. . . .”

New York Convention, Article III.  The New York Convention does set forth certain bases to decline recognition of arbitral awards.  They include:

  • Incapacity;
  • Lack of notice;
  • The award goes beyond the scope of the arbitration;
  • The composition of the arbitral panel was not in accordance with the agreement of the parties;
  • The award is not yet binding or has been set aside by a court;
  • The subject matter is not capable of resolution by arbitration; or
  • Enforcement of the award would be contrary to the public policy of the country where enforcement is sought.

New York Convention, Article V.

Austria defended the claim to Portrait of Amalie on the merits.  The panel may have been wrong as a matter of fact (though I don’t think it can be said to have been irrational).  It may have applied the law wrongly, and the Austrian Supreme Court may have done likewise.  But it is really not for the UK to say otherwise, any more than Americans would accept a French court explaining that the Supreme Court had interpreted American law wrong.  The UK is clearly not going to take the position that the European approach to title is at odds with British public policy, either; imagine the chaos that would set off for British investors and business people on the Continent.

Moreover, Austria is about to face a new claim to the famous Klimt Beethoven Frieze, at the Secession Museum.  The Klimt frieze is one of the iconic works of Vienna.  Its loss would be a major event, so Austria has clearly not undertaken to contest the claim lightly.  Yet Austria has submitted to its claims procedure, which it surely would reconsider if the Portrait of Amalie judgment suddenly were not regarded as final.

What about the United States?  From a jurisdictional standpoint, the Altmann heirs could try to set forth a theory under the FSIA, particularly that they share the same attorney who successfully persuaded the Supreme Court to allow such claims.  But the statute of limitations has undoubtedly run on those claims, and may well be why they have not been brought to no effective purpose.  In short, to ensure that future claims get their day in court, the Portrait of Amalie has to stay right where it is.

If that were not reason enough, proponents of seizure should consider the implications of such a move.  As discussed at length here before, the future of restitution claims in the United States against foreign governments and museums is a shaky proposition at best as far as enforcement.  Advocating that the Austrian arbitral award be ignored would invite a similar approach from any European state museum that lost a judgment in the future.  What if the Beethoven Frieze award were rendered in a US arbitration, but Austrian then refused to recognize it?  That would not help anyone.

It is a fair question whether, as a matter of museum ethics, the National Gallery should have declined the loan.  But again, who is helped or harmed by that?  These are difficult questions, and tragic stories.  But it is also true that making a claim and proving it are different things, and sometimes there are judicial outcomes that people disagree with.  Once that becomes a basis to ignore the results, however, a great deal more is at risk.