Sotheby's and the Koh Ker Duryodhana, the Key Question

It is interesting to note the key element of the Koh Ker Duryodhana settlement:

"lawyers from the United States Attorney’s Office in Manhattan who had been pursuing the statue on Cambodia’s behalf agreed to withdraw allegations that the auction house and the consignor knew of the statue’s disputed provenance before importing it for sale".

The consigner, Decia Ruspoli di Poggio Suasa, had acquired the statue from her late husband's estate and in actual fact, she and her lawyers may have known little about the process of its acquisition and therefore provenance. Sotheby's on the other hand, being intimately acquainted not only with the art market but also (as it turns out), some of the people involved in its past history, had every reason to look into that very carefully before agreeing to handle the piece on her behalf.  As Tom Mashberg and Ralph Blumental write in the New York Times, the issue of the nature of the transaction was of primary interest to the auction house:

While the auction house agreed to pull the statue from the sale, it rejected Cambodia’s request to return it as stolen property. Instead, the auction house told Cambodian officials that it viewed the statue as the lawful property of its consignor, Ms. Ruspoli, and that Cambodia should consider purchasing it directly through Sotheby’s. 

The impasse was broken last year by the entry of US authorities into the dispute on behalf of Cambodia. They put together a court case based on the premise that the object had entered the US illegally because it constituted stolen property under Cambodian law:

In the filing, federal lawyers accused Sotheby’s of trafficking in stolen property and trying to concoct a false ownership trail that would legitimize the statue’s presence at auction. Sotheby’s vehemently denied the charges and challenged the government’s case, arguing that evidence of when the statue may have been taken was thin and that the Cambodian laws the government was relying on were moot because they were adopted in the early 1900s when Cambodia was still a French colony. The settlement signed on Thursday specifically said that the federal authorities no longer contend that Sotheby’s or the consignor had done anything to mislead anyone about the statue’s provenance. 

This obviously would have had devastating consequences for the auction house should the court accept the aggressively-defended arguments. Defending itself would have been very time-consuming, cost a lot of money and generate a huge amount of negative publicity.  Obviously, the reputation of Mr Ruspoli was also at risk. Simply cutting losses and sending it back must have seemed the preferable option to arguing the pros and cons of this complex and entangled case in court.

It will be very interesting to see what comes next in this case. If I was the consigner who'd lost a lot of potential money in the failure of this transaction, I'd be asking my lawyers this morning to look carefully into the failure of Sotheby's to identify the threat. While the statue was sitting next to the coat rack in her mansion's hallway back in Belgium, there was relatively little risk that Cambodia would be fighting to get it back. Belgian and EU law may well - let's assume for the sake of the argument - have rendered that difficult. In the case of something shipped off - on Sotheby's say-so, one assumes - to the US the situation changes, since 2003 the US has had a cultural property MOU specifically with Cambodia. and is looking out for precisely such material from precisely that country. If I were Ms Ruspoli, I'd be asking my lawyers this morning whether Sotheby's is liable for the loss of one of the assets received from the late husband's estate through negligence, and failing to adequately advise the consigner of the risks resulting from exporting the object from the EU to the US.

Source:
Tom Mashberg and Ralph Blumental, 'Disputed Statue to Be Returned to Cambodia', New York Times December 12, 2013