Tuesday, May 24, 2011

U.S. and LACMA Seek Federal Court Help in Russian Embargo on Art Loans: Litigation as Diplomacy in Incendiary Chabad Case

A federal court in Washington, D.C. hearing Chabad v. Russian Federation, the case that set off Russia’s embargo on lending art to U.S. museums, has apparently become the latest forum for some extraordinary diplomacy in the U.S.-Russia art wars.

The case puts into sharp relief how Russia's nationalism and protection of its sovereignty have been frequently underestimated in diplomatic and cultural matters over the centuries, which occasionally led to war.  Chabad, for its part, is no stranger to making incendiary statements, including here.

Among other comments, Chabad's co-counsel in this case stated that it would use "any means permissible" to enforce the default judgment it holds against Russia.  "If the Russians are concerned about the art they send to America, I am happy they are concerned.  If they comply they won't have to be concerned," the lawyer said.

Chabad, a Jewish sect based in Brooklyn, is seeking to recover the "Schneerson Collection," an archive and library of religious books and manuscripts gathered by one of its leaders.  Russia, after an adverse ruling from the D.C. Court of Appeals, abandoned the case, saying the U.S. courts had no jurisdiction over it.

Chabad obtained a default judgment in July 2010 that ordered Russia to turn over the collection.  Russia fears that if it sends art to the U.S. it will be seized by Chabad to force Russia to comply with the judgment, and imposed its art embargo, according to a report by the Agence France Presse, in August.

The embargo has seen loans to the Met and National Gallery cancelled (a few are shown here) and others recalled.

Chabad is now seeking to enforce the judgment, and on April 4 made two motions that are currently before the court -- one requesting sanctions and one requesting permission to begin attachment proceedings.

Unexpected Maneuvering

In the last couple of weeks there has been some unexpected maneuvering by nonparties and Chabad alike.

The U.S. government is considering filing a statement with the court explaining “the U.S. position on the seizure of art loans,” one of Chabad attorneys, Seth Gerber of Bingham McCutchen, told this reporter.

The L.A. County Museum of Art has asked Chabad to stipulate that it will not seize any of the 38 art objects the museum still hopes Russia will lend for its “Gifts of the Sultan” exhibition opening June 5.

And Chabad has filed two sets of papers whose purpose is “for the reassurance of the Russian government” and museums, in addition to the court, Gerber said.

In the just-filed papers — one a letter from Chabad’s lawyers to the U.S. government and one the stipulation with LACMA — Chabad promises not to seize art that federal statutory law protects from seizure anyway.  To quote the letter, “Our client intends fully to comply with the federal law.”

Federal law -- the federal Immunity from Seizure Act -- protects cultural objects on temporary loan to nonprofits like museums.  Chabad’s lawyers have contended — to this reporter as recently as Sunday — that they will go after any of Russia's cultural assets that do not receive federal protection, such as those in the U.S. for commercial purposes.

Incendiary Comments?

Why would an organization feel compelled to state in court, twice, that it wouldn’t do something prohibited by law?

“The law has always been clear,” says Charles A. Goldstein, counsel to the Commission for Art Recovery and a specialist in art restitution: temporary loans to museums “can’t be seized.”  Chabad’s filings, he said, are simply “a statement of the obvious.”

Chabad, Gerber said, thought it “prudent” to file the papers to “clarify” its position because of extensive “media coverage.”  He acknowledged in particular certain incendiary statements by co-counsel Marshall Grossman and Nathan Lewin.

In February, for example, the New York Times reported that when asked whether he would consider seizing art, Grossman had said, “Chabad will exercise every remedy under law to enforce the judgment.  No exceptions.”

And the Jewish Chronicle, in an article that also appears on Chabad's website, quoted Lewin as saying that Chabad would use "any means permissible" to force Russia to comply.  "If the Russians are concerned about the art they send to America, I am happy they are concerned.  If they comply they won't have to be concerned."

Questioned about the statements, Gerber was quick to say they were consistent with the latest court filings, emphasizing the words “under law” and "permissible."  He also pointed out that they were made after the embargo had gone into effect.

Why had Chabad waited until now to clarify its position, given the media attention starting in February?  “No museums had  contacted" him, Gerber said.

But he knew that Russia had cancelled loans to the Met and the National Gallery?  He “didn’t know” the cancellation were “because of the ban,” which hadn’t been confirmed until very recently, he said.

U.S. Government Concerns
It seems the court-filed assurances were more likely the result of Chabad’s attorneys' recent conversations with the U.S. government and LACMA.

On April 4, Chabad filed its motion requesting court approval to begin enforcement proceedings.  Ten days later, the government filed a Notice of Potential Participation, citing unspecified “concerns” about the motion. The government stated that it required 30 days to evaluate the situation and requested the court not rule on the motion before then.

Chabad’s attorneys contacted the State and Justice Departments to find out what the problem was.  On hearing the government’s concerns about Russia’s cancellation and recall of loans — according to Gerber, the government was considering filing a statement of “the U.S. position on the seizure of art loans” — the attorneys assured the government in a May 2 conference call that Chabad would not attempt to seize artworks that were protected from seizure by federal law.

They memorialized that assurance in the letter addressed to the government, and filed the letter on May 13.

On May 16, the government filed a Supplemental Notice, stating that there had been “certain recent developments,” including Chabad’s May 13 filing, and that it needed another 30 days to “evaluate the impact” of that submission.

LACMA then contacted Chabad — the only museum to have done so, Gerber said — and the stipulation was filed May 18.

 Have Chabad’s assurances had any impact?

The Legal Times on May 17 quoted a Russian embassy spokesman saying that negotiations with the U.S. would begin  “very soon.”  If anything’s been scheduled, Gerber said, Chabad hasn’t “been asked to the table.”  Attempts to obtain confirmation from the U.S. State and Justice Departments have been unsuccessful.

At LACMA, a staffer declined to comment beyond saying that the situation was “fluid” and the museum was “moderately hopeful.”

Phone calls to the Russian embassy and consulate for its perspective went unanswered.

As for Chabad’s assurances, they only cover art that comes within federal law — i.e., on temporary loan to nonprofit institutions.  Any art that Russia sends to the U.S. for a “commercial purpose” is fair game, Gerber said.

Will the Mariinsky/Kirov Ballet cancel its trip to New York this July for fear that its sets and costumes will be seized?  Are we witnessing the beginning of a broader breakdown in cultural exchange?

These two intransigent parties may well deserve each other, but the repercussions may be large indeed. 

Images of cancelled art loans, top to bottom:  A Gauguin at the Pushkin; a Cezanne and a Canaletto at the Hermitage.

Copyright 2011 Laura Gilbert