Thursday, December 12, 2013

UPDATED: Cambodian Statue Forfeiture Agreement: Prosecutors Succeed, Sotheby's Gains Concessions. What's Next?

After a bitter court battle flared to new heights in September, the U.S. Attorney's Office for the Southern District of New York and Sotheby's today proposed an agreement to repatriate a 10th century Duryodhana statue to Cambodia.

If today's proposal is signed off by district court Judge George Daniels, it marks the end to a prolonged legal fight that began in 2012.

Prosecutors have consistently maintained that the sculpture was stolen from the Prasat Chen temple at Koh Ker. In fact, the statue's feet remain in Cambodia. They asserted in court papers that it had been looted from Prasat Chen during the 1960s and 1970s and that a private collector in Belgium purchased the Duryodhana from an auction house in the United Kingdom in 1975. They claimed that the statue was the property of Cambodia since at least 1900.  They also alleged that Sotheby’s imported the Duryodhana into the United States in April 2010 and made arrangements to sell the statue in 2011, despite knowing that it was stolen from Koh Ker.

By contrast, Sotheby's and Decia Ruspoli di Poggio Suas, the claimants, have disputed the government’s assertions. They have maintained in pleadings that Ms. Ruspoli di Poggio Suasa’s husband bought the Cambodian statue in 1975 in London in good faith and that they did not know the statue may have been stolen. They have also contended that colonial laws from 1900 and 1925 claiming to vest ownership of the statue in Cambodia remain ambiguous.

The proposed Stipulation and Order of Settlement of December 12 wipes away both sides’ arguments and awards the parties something each wants.

Under the proposed order, U.S. Attorney Preet Bharara and Asset Forfeiture Chief Sharon Cohen Levin will successfully seize and forfeit the statue in order to return it to the Cambodian people. Sotheby's and Decia Ruspoli di Poggio Suas, meanwhile, will end the protracted litigation and receive legal guarantees.

The agreement gives federal prosecutors their victory by declaring “that the Statue is forfeitable to the United States as … property brought into the United States contrary to law.” It also gives the claimants protective legal concessions, memorialized in the proposed Stipulation and Order this way:
… Sotheby's and Ms. Ruspoli maintain that at all relevant times Ms.. Ruspoli had clear legal title to the Statue and deny ever knowing or believing that the Statue belonged to the Kingdom of Cambodia, or providing anyone any provenance information about the Statue known or believed to be inaccurate;  
… Sotheby's and Ms. Ruspoli have a good faith disagreement with the United States regarding whether the Kingdom of Cambodia owned the Statue;  
… the United States does not contend that Sotheby's (or any of its lawyers, executives, officers, or employees) or Ms. Ruspoli knew or believed that the Statue was owned by .the Kingdom of Cambodia or knowingly provided false or misleading provenance information about the Statue;
Legal observers of the case, docketed as United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York, will no doubt take notice that the U.S. Attorney’s office in Manhattan is willing to aggressively tackle cultural property repatriation cases, even if its prosecutors must engage in litigation with one of the world’s largest auction houses.

Moreover, given today’s proposed resolution by the parties, lawyers may ponder whether similar results might be reached through negotiations, or perhaps even mediation, in future cultural property contests. And that question may be answered sooner than expected in the case of the Norton Simon Museum, which displays the companion statue of the Duryodhana.

UPDATE: Where earlier this year Hon. George Daniels denied Sotheby's motion to dismiss, the NY federal judge has now approved the parties' Stipulation and Order of Settlement. That order, dated December 12 and electronically filed on December 13, may be viewed here.

Photo credit: intuitives

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT INFORMATION: www.culturalheritagelawyer.com