The Governing Council decided to recommend that the topic of Private Art Collections be included in the UNIDROIT Work Programme for the 2017-2019 triennium by the General Assembly, and to assign it a low level of priority. The General Assembly endorsed this recommendation at its 75th session, on 1 December 2016.
This topic was included in the Work Programme 2020-2022 with low priority, allowing for further research into the subject. UNIDROIT continued to examine the subject and to raise awareness among private collectors about ethical acquisition.
In February 2021, UNIDROIT organised a colloquium with the University of Geneva and the Gandur Foundation for Art in Geneva, entitled “What prospects for ‘orphan works’? Reflections on Cultural Goods without Provenance” . This conference provided an opportunity for collectors, gallerists, lawyers, historians, archaeologists, academics, and museums to come together virtually and share their ideas and perspectives on the ever-growing debate around orphan objects.
As part of the New Work Programme for the triennial period 2023-2025, the establishment of a new working group to address orphan cultural objects was proposed.
Work Programme 2017-2019
Following a proposal for work on legal issues related to Private Art Collections by the Permanent Mission of Mexico to the International Organisations with Seat in Rome transmitted to the Secretariat, the Governing Council decided to recommend that this topic be included in the UNIDROIT Work Programme for the 2017-2019 triennium by the General Assembly, and to assign it a low level of priority. The General Assembly endorsed this recommendation at its 75th session, on 1 December 2016.
UNIDROIT explored future steps with respect to legal issues related to Private Art Collections at the recommendation of the Governing Council and with the intention of ensuring that any work would be highly compatible with its mandate and with the provisions of the 1995 UNIDROIT Convention and other relevant work and instruments in its field.
Several conferences were held to discuss the issue of private art collections:
“Private Collections: Historical and Legal Perspectives” hosted by UNIDROIT in Rome in March 2017. The Conference was co-organised with the International Society of Research and Cultural Heritage Law (ISCHAL), the Institut des sciences sociales du politique (CNRS-ENS Cachan-Université Paris-Nanterre) and BonelliErede law firm. Professor Elina Moustaira, professor of comparative law at the School of Law of the National and Kapodistrian University of Athens was invited to make a presentation and share a document indicating private law aspects on which UNIDROIT’s particular expertise would be beneficial, which was submitted to the Governing Council in May 2017.
“Provenance of cultural objects” organised by ISCHAL in Geneva in March 2018, which dedicated a session to the provenance of collections with the participation of lawyers, museum directors and collectors.
In June 2019, UNIDROIT, the University of Gdansk and the University of Opole (UNESCO Chair in Cultural Property Law) – with the support of ISCHAL – organized a symposium in Gdansk that focused one entire day on private art collections.
Work Programme 2020-2022
In February 2021, UNIDROIT, the University of Geneva Art-Law Center (ALC) (an institutional member of UCAP), and the Fondation Gandur pour l’Art (FGA) organised a colloquium in Geneva on the subject of “Orphan Works” in response to the increasing interest in the question of archaeological and ethnographic objects – and, more broadly, works of art – that have incomplete or no documented provenance. This conference, “What prospects for ‘orphan works’? Reflections on Cultural Goods without Provenance,” provided an opportunity for collectors, gallerists, lawyers, historians, archaeologists, academics, and museums to come together virtually and share their ideas and perspectives on the ever-growing debate around orphan objects (see video). Several themes were selected for further development. They included: a working definition of orphan objects; the role of provenance research; the legal status of orphan objects in art collections; defining due diligence in acquiring an orphan object; the issue of proof; the role of databases; the time-limitation of claims on orphan objects; the return and restitution of an orphan object.
In March 2022, UNIDROIT, the University of Geneva Art-Law Centre and the Fondation Gandur pour l’Art were invited to a conference on “Due diligence, Digital Databases and Cultural Property Law and Policy” by the Harry Radzyner Law School of Reichman University in Herzliya (an institutional member of UCAP). The conference featured a specific panel on the topic of orphan objects. Another event was organised ‘What Museums and Collectors Should Know about Provenance and Due Diligence: An International Perspective’ at the Tel Aviv Museum of Art.
Finally, UNIDROIT Governing Council member Mr. Jorge Sanchez Cordero invited UNIDROIT to present the project on Private Art Collections at a conference on ‘Culture and Law’ organised by the International Academy of Comparative Law and the Centro Mexicano de Derecho Uniforme, which took place on 21 and 22 April 2022 in Mexico City.
Work Programme 2023-2025
On a proposal by the Secretariat, endorsed by the Governing Council in 2022, the General Assembly enhanced the level of priority given to the project focusing on orphan cultural objects to a medium priority activity in the new Work Programme 2023-2025 which permits the convening of a Working Group, together with our partners.
Orphan Objects
Orphan cultural objects are artistic, archaeological, or ethnographic material lacking a complete provenance. Objects may become orphans through both illicit and licit means such as theft, illegal excavation or export, wars, ethnic persecution, past colonial domination, passage of time, or poor record keeping. Without proof of a legally sound provenance, acquiring or disposing of an orphan object presents an ethical and legal risk.
The notion of an orphan object is not unique to cultural property law. A similar concept exists in intellectual property- specifically copyright- law, to refer to works for which the author is unknown. In cultural property law, the question is one of history of ownership as opposed to creation, but the core issue -who owns what and how to establish that ownership- remains the same.
UNIDROIT has identified an increasing interest in the legal questions surrounding orphan objects. It is well-understood that any acquisition of cultural material must be made in accordance with national laws and international conventions. But what can be done with works that have no documentation? What if the holders of such material wish to move, sell or lend them? Many collectors and dealers prefer to avoid potential problems by coming up with discreet solutions, primarily private sale, which encourages the clandestine market and results in a total lack of transparency detrimental to the preservation of objects and industry as a whole.
The Exploratory Expert Group
The UNIDROIT Secretariat, having identified the subject of orphan objects as the focus of the project, and waiting for the General Assembly to upgrade the project in order to secure funding, an Exploratory Expert Group was convened on 12 September 2022 for a preliminary discussion on selected topics. The meeting was held in a hybrid format, in Geneva and online.
The purpose of the meeting was to initiate a discussion among legal experts, and also representatives of the art market and the museum community, on a certain number of selected relevant issues (including, inter alia, the scope of the project, definitions, the role of provenance research, the legal status of orphan works in art collections – private or public -, the due diligence required when acquiring an orphan work, issues of proof, and the role of databases).
An informal sub-group met in Rome at the seat of UNIDROIT (and online) on 3 March 2023, moderated by Prof. Marc-André Renold (Art-Law Centre, University of Geneva), to discuss the issue of the definition of “orphan objects”.
The second meeting of the Exploratory Expert Group met in Rome (and online) on 29 and 30 March 2023. It discussed the proposed definition submitted by the subgroup as well as the reports presented by two groups of stakeholders (collectors and the art market).
The Working Group
The first meeting of the Working Group took place on 2 and 3 May 2024 in Rome.
The second meeting of the Working Group will take place on 11-13 December in Rome.
Professor Iacopo Donati is the UNIDROIT/Bank of Italy Chair Holder and is mainly responsible for assisting in the Bank Insolvency project. He is Professor of Corporate and Insolvency Law at the University of Siena, and coordinates the research project ‘Pro.Re.Ba.’ (Proportionating rules on bank crisis prevention and management to the case of retail banks), which has received funding from the Italian Ministry of University. He has previously taught corporate law at the University of Venice ‘Ca’ Foscari’, at the University of Florence and at the University of Rome ‘Tor Vergata’.
Professor Donati is the author of several publications on corporate law, restructuring, insolvency law, and bank crisis management. On the same topics, he has been invited as a speaker to various international and national conferences and participated in some high-impact international, European, and national research projects. Professor Donati’s education includes a Ph.D. in Corporate Law (University of Rome ‘La Sapienza’), an LLM in Corporate Governance (Stanford Law School), and a Law Degree with honors (University of Florence). He is qualified as an attorney in Italy and in the State of New York (USA).
Ms Olga Fonotova is an Associate Professor of the Faculty of Law (Department of Legal Regulation of Business) at the Russian National Research University “Higher School of Economics” in Moscow. She holds a PhD degree cum laude in private law / private international law from the Lomonosov Moscow State University (2006). Her academic and teaching interests cover private international law, international and national commercial law, with a focus on unified and non-state legal regulation of cross-border commerce.
Olga is a Russian law qualified practicing lawyer in the sphere of national and international commercial and corporate law with 20+ years’ experience in leading law firms. As part of her legal practice, she has advised multinational corporations on the setting up of multi-jurisdictional commercial relations, on the formation / termination of international joint ventures, restructuring of assets, and financing / refinancing of projects. For her work on commercial and corporate legal matters she was included in the international rating of leading lawyers “The Best Lawyers® in Russia” (2018 – 2022).
She is a UNIDROIT alumna (2011) and a Correspondent of UNIDROIT in Russia (2023 – 2025). From 2016 to 2021 Olga was a member of the ICC Commission on Commercial Law and Practice (ICC CLP) and a member of the Association of European Business (AEB) in Moscow.
Allan M. Mukuki, PhD Candidate (Navarra, Spain), LLM (Groningen, Netherlands), PGDip (KSL), LLB (Hons) (UoN), ACIArb (London), Advocate of the High Court of Kenya.
Allan Mukuki is an Advocate of the High Court of Kenya as well as a Commissioner for Oaths. He is presently a PhD Candidate at the University of Navarra in Spain. He is also a holder of an LL.M in International Law and the Law of International Organizations, from the University of Groningen in the Netherlands. He has an LL. B (Hons) from the University of Nairobi, he is a Member of the Cha
rtered Institute of Arbitrators (London). He further holds a post-graduate diploma in law from the Kenya School of Law. Allan is also a scholar from the Hague Academy of International Law.
Some of his many roles in the legal profession include Director of International Partnerships; a Doctoral Fellow; member of the Management Committee and moot court coordinator, all for Strathmore Law School; Research Fellow for the African Region (Kenya), for the European Research Council Grant Project on the interpretation of customary international law; and Acting Director for the Strathmore Institute of Advanced Studies in International Criminal Justice (SIASIC)
Allan has previously worked at A.F Gross Advocate; in various legal institutes; in governmental agencies and in the Judiciary of Kenya. He was also a Legal researcher in the Office of the Solicitor General, Kenya, for the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), a case that was before the International Court of Justice. His main areas of specialization include Public International Law, The Law of International Organizations, International Humanitarian Law, International and Regional (EAC) Refugee Law and Legal Policy Development.
Further, Allan has been involved in various national and international legal consultancies and projects; he has published several peer reviewed legal articles, a legal monograph and presented several legal papers in international conferences around the world. He has also developed several policy documents for Strathmore University as well as (currently operational) manuals and laws for the operation of the Judiciary as well as governmental agencies and regional agencies such as IGAD.
ANDREA SANTACOLOMA
Director
PROFESSIONAL PRACTICE
Andrea Santacoloma is a Panamanian lawyer that focuses her practice on international commercial arbitration.
Prior to joining Adell & Merizalde, Andrea was the Deputy Director for Latin America of the ICC International Court of Arbitration for 5 years. In this role, she gained vast experience in the internal functioning of the ICC’s Secretariat and Court and saw first-hand the work of hundreds of arbitrators and ICC Court Members in the region. Andrea was also in charge of identifying new opportunities and potential users of the ICC Dispute Resolution Services (ICC DRS) in Latin America, in liaison with the ICC National Committees and other institutions in the region. She also worked as a lawyer advising local and international clients on business and corporate law and M&A in 3 Panamanian law firms.
She is currently the Executive Director of the Latin American Arbitration Association (ALARB), one of Latin America’s leading associations gathering practitioners and arbitrators, which seeks to encourage the use of arbitration and foster initiatives for the development of international arbitration in the region.
In July 2022, the G
overning Council of the International Institute for the Unification of Private Law (UNIDROIT) appointed Andrea as a Correspondent for Latin America. Namely, Andrea was appointed as a Correspondent for the Republic of Panama for the period 2022-2025.
EDUCATION
• American University Washington College of Law, LL.M. in International Arbitration and Business Law
• International Training Centre of the International Labor Organization (ILO) jointly with the United Nations Commission on International Trade Law (UNCITRAL), Università degli Studi di Torino, and University Institute of European Studies (IUSE), LL.M. in International Trade Law & Dispute Resolution
• Universidad Católica Santa María La Antigua, LL.M. in Corporate Law
• Universidad Católica Santa María La Antigua, Degree in Law and Political Science
• Centro de Estudios Regionales de Panamá, Diploma in Entrepreneurship and Management of Small and Medium Enterprises
Bar admissions
Republic of Panama
Languages
Spanish, English, Italian (intermediate)
asantacoloma@adellmerizalde.com
+507 370 4155
NAME: PROF. DR. HERNANY VEYTIA (LL.M. YALE)
AFFILIATION DIRECTOR BNM-CAMBRIDGE STUDY CENTRE ON SUSTAINABLE INVESTMENTS
PRESENTATION
Professor of law, international strategic consultant, arbitrator, and entrepreneur. Hernany Veytia is very comfortable with complex, high-profile and confidential transactions. Her consulting experience as partner of BNM and Deloitte enables her to focus on and add value to the sustainable and commercial aspects of each deal. Frequently she leads transdisciplinary teams to deliver fact findings and legal opinions, feasibility studies and turn-key projects for banks, governments, international organisations, and corporations willing to expand or withdraw operations in other jurisdictions.
In Prof Veytia’s experience UNIDROIT works have been very useful to understand not only the foreign law, but also to recognise the cultural, political, and economic factors at play, and the way national and international regulators operate-and cooperate. In her opinion, UNIDROIT instruments have been of utmost importance for the legal strategies she designed for:
• DANPREIT (Dispute Analytics Platform for Real Estate Investment Trusts in the Agriculture, Construction and Mining industries).
• TELEKAIROS, innovative methodology that incorporates the use of space assets.
• Corporate art collections, restitutions, including donations, sponsorships, and loans to museums.
• Contracts used by a German waterworks company willing to grow in all the Caribbean and Central American countries.
• Liquidation of commercial and investment banks
• IPOs and reverse mergers for companies in the extraction industries (Canadian stock exchange), ILS listed in Bermuda and African sovereign funds listed in London.
• Franchising and other commercial contracts in the food & drinks, health, aero-space, and automotive industries.
In the last three decades Prof. Veytia has lived, and successfully completed investments and disinvestments in more than forty countries in the five Continents. She is frequently appointed as arbitrator and invited as speaker on risk transfers at international industry conferences in fields of her expertise: energy (both renewable and traditional), artificial intelligence, infrastructure, mining, real estate, agriculture, rail, space, automotive, and franchising. She sits in the board of directors of companies in Europe including the United Kingdom.
Anna Veneziano is the Deputy Secretary General of the International Institute for the Unification of Private Law (UNIDROIT). She is a Professor of Comparative Law at the University of Teramo, Italy, where she was formerly the Director of the Department of Private Law. She has also formerly been a tenured Professor of European Property Law at the University of Amsterdam (UvA). Her education includes a Law Degree with honours from the University of Rome La Sapienza, an LL.M degree from the Yale Law School funded by a Fulbright scholarship, and a PhD degree from the University of Florence (Italy).
Her main research and publication areas are on secured transactions as well as international, comparative, and European contract and sales law. Before joining UNIDROIT she was a member of the Italian delegation with respect to the Cape Town Convention on International Interests on Mobile Equipment and its Aircraft Protocol as well as its Space Protocol. She was also a member of the Study Group on a European Civil Code and of the Compilation and Redaction Group on a Draft Common Frame of Reference on European Private Law (DCFR), and of the restricted Expert Group set up by the European Commission on a common European law on sales.
P
rofessor Ignacio Tirado was appointed Secretary-General by the Governing Council at its 97th session, and officially took office on 27 August 2018. A national of Spain, Professor Tirado (Commercial, Corporate and Insolvency Law, Universidad Autónoma of Madrid, Spain) holds a PhD from the Universities of Bologna and Autónoma de Madrid and an LLM from the University of London. Professor Tirado has been a Senior Legal Consultant at the World Bank’s Legal Vice-Presidency and Financial Sector Practice for more than nine years, having also consulted for the IMF on insolvency related matters as well as for the Asian Development Bank on commercial legal reform.
Amongst other accolades to his professional experience, Professor Tirado is a founding member of the European Banking Institute, an International Fellow of the American College of Bankruptcy and has been Director and Academic Co-Chair of the International Insolvency Institute.
A Swedish national, Ms Lena Peters grew up in Italy where she attended an English school. In 1978 she took her Juris Kandidatexamen at Stockholm University followed by a Master of Laws from King’s College, London (1979). Since 1985 she has been with UNIDROIT, first as Research Officer, lastly as Principal Legal Officer, her main duties being Secretary to the Working Group for the Preparation of Principles of International Commercial Contracts, Secretary to the Study Group on Franchising, Secretary to the Committee of Governmental Experts on Franchising.She also collaborated on the project for the preparation of the ELI-Unidroit Model European Rules of Civil Procedure. She is currently Managing Editor of the Uniform Law Review and responsible for publications at UNIDROIT.
Marina Schneider is Principal Legal Officer and Treaty Depositary at UNIDROIT. She studied law at the University of Strasbourg (France) and Paris I – Panthéon Sorbonne. She joined the UNIDROIT in 1987 and was involved in the elaboration and French versions of most UNIDROIT instruments since. She is in charge of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and of the UNESCO-UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. She is the author of the Explanatory Report of the 1995 Convention and many articles on the Convention and other international instruments in the field. Ms Schneider is also responsible for the project on private collections and for the UNIDROIT Convention Academic Project (UCAP). She is member of the Board of the International Society for Research on Art and Cultural Heritage Law (ISCHAL).
Professor of Commercial Law, Carlos III University of Madrid. Currently, Sir Roy Goode Scholar at UNIDROIT, Rome, 2021-2022. Chair of Excellence 2017-2018 at University of Oxford (Uc3m- Santander Program), affiliated to Harris Manchester College. Previously Distinguished Visiting Professor and fellow of a number of Academic Institutions. Arbitrator of Madrid Court of Arbitration. Member of ELI (European Law Institute) Council and Executive Committee. Member of the Expert Group of the European Commission on Liability and New Technologies and member of the Expert Group of the European Observatory of Platform Economy; the International Academy of Commercial and Consumer Law; the expert group of the Inclusive Global Legal Innovation Platform for Online Dispute Resolution – UNCITRAL and Hong Kong Department of Justice. Expert of the UNIDROIT Study Group on the MAC Protocol of the Cape Town Convention on International Interests. Delegate of Spain to UNIDROIT for the adoption of the Protocol, delegate of Spain in Working Group VI of UNCITRAL on secured transactions and in Working Group IV on Electronic Commerce. Member of UNIDROIT Working Groups on Enforcement and Warehouse Receipts.
William Brydie-Watson is an Australian lawyer who specialises in secured transactions law and private international law. Before joining UNIDROIT, William was a government lawyer in the Private International Law and International Arbitration section of the Australian Attorney-General’s Department, where he worked primarily on treaty negotiation and the implementation of private international law treaties in Australia. At UNIDROIT, he is primarily responsible for the implementation of the Mining, Agriculture and Construction (MAC Protocol) to the 2001 Cape Town Convention on International Interests in Mobile Equipment and the development of a Model Law on Factoring. William also serves as UNIDROIT’s liaison with the Asia Pacific Economic Cooperation (APEC) forum and as manager of the Institute’s Scholarship and Internship Programme. Admitted to practice in New South Wales and the High Court of Australia, he has a Bachelor of Arts (honours), a Bachelor of Laws and a Master of Laws from the Australian National University. William also lectures on International Secured Transactions Law at the Eotvos Lorand Faculty of Law in Budapest.
