Have you been asked for Immunity from Seizure?
With an increase in international lenders asking for Immunity from Seizure, many museums and galleries find out too late that they should have begun the application process several months earlier
Does your museum need to be able to offer immunity from seizure?
Many international lenders are now asking for Immunity from Seizure for their loans. This is a legal guarantee that their objects will be protected from court-ordered seizure, for a limited period of time, while in the UK. The result is that many UK museums are being caught out when suddenly asked for immunity as a condition of loan. Preparations are often far advanced when the lender asks for immunity and there may be no time to go through the process of applying for Approved Status.
You may never have borrowed from abroad but it’s a good idea to consider if you might be doing an international loan in the future. If so, you should consider obtaining Approved Status now.
Why is this happening?
In many countries, the Immunity from Seizure process is straight forward and quick to obtain. For example, simply registering the loans with the Department for Culture gives an automatic guarantee. Because lenders do not realise that the UK process is more rigorous, they tend to ask for proof of immunity at the last minute and just before the loans are due to leave.
More and more UK museums are borrowing from abroad, entering into international partnerships and exchanges and taking part in touring exhibitions. They may suddenly find themselves faced with an unexpected demand for immunity from seizure with no knowledge of how to obtain it.
They often approach the DCMS with only a few weeks before the objects enter the country. By this time it is usually too late. The UK process can take 2-3 months. The applying museum must prove that it has all the necessary processes in place and has been applying due diligence procedures for some time.
Why are so many lenders asking for immunity?
Many lenders are now asking for immunity as a matter of course. Some countries offer immunity along with government indemnity and expect to receive the same in the UK. Most lenders in Russia and in the USA automatically ask for immunity and will not lend without it.
Many museums in the USA and Europe have been subject to claims from descendants whose property was seized by the Nazis in the 1930s and 40s or confiscated by the state after 1946 by Iron Curtain countries. There are also frequent claims from governments claiming that archaeological, historical or ethnographic items were stolen and illegally exported from their countries.
In several countries, notably Russia, there may be outstanding claims against the state for failing to pay for goods and services. The claimants may attempt to seize goods owned by the state while they are out of the country in order to satisfy outstanding debts.
What is immunity from seizure?
Immunity from seizure is a legal guarantee that items lent from abroad for temporary exhibition will be returned to the lender at the end of the loan and will not be handed over to a claimant who says they are the rightful owner. Certain terms and conditions apply.
Immunity from Seizure was introduced into the UK in 2008 because many international lenders were refusing to lend without it. Since that time, 27 museums and galleries have obtained Approved Status – the certification that allows them to offer immunity from seizure for loans from abroad.
In order to obtain Approved Status, the organisation must be able to demonstrate that it is an ethical organisation following due diligence processes for examining the history of loans in and that they will not borrow items if there is any suspicion that they were stolen, looted or illegally obtained.
Once Approved Status has been granted, the museum or gallery can simply list the works on its website with details of the loan and of the exhibition and immunity will be automatic. Reports must be provided. The Regulations are listed on the website (see below).
What should you do if you might be asked for immunity?
You might be asked for immunity if you intend to borrow from Russia, the USA or any country that has been subject to war, looting, occupation or boundary changes within historical memory. Begin by looking at your internal processes and procedures to make sure they are up-to-date and appropriate for loans from abroad.
Loans policy: check that your loans policy states that you are an ethical organisation and that you do not borrow items that may have been stolen, looted or illegally exported. You may wish to state on your website that you accord with the various national and international codes of ethics regarding loans, e.g., the ICOM and Museums Association’s Codes of Ethics.
Due diligence: Verify that staff are, as a matter of course, already undertaking provenance research into the history of object. They must be able to prove that there are no alarming gaps in ownership and that there is no possibility that the items were stolen, looted, transferred under duress, illegally excavated, exported or smuggled. There should be a written process for examining provenance history and noting down the evidence.
Museums and galleries receiving Government Indemnity for exhibitions should already be carrying out provenance research as a condition of that indemnity. It doesn’t look good on the application to say that you have never carried out provenance checks because you have never been asked for immunity from seizure before.
Loan forms: ensure that your loan form asks the lender to guarantee that they are the legal owner (or the owner’s agent) and that they know of no previous, current, or potential claims for the object from a third party.
Knowledge: find out if exhibition staff understand the meaning and implications of immunity from seizure. If not, get expert advice or consult colleagues in other organisations to ask for help.
Management: due diligence is not just the job of the exhibition curator. It must be an integral part of the organisation and adopted by the director and the board of trustees. Make sure they are aware of the implications and ask if they will lead an application for Approved Status should you decide to go ahead.
If you have all these procedures in place, you can approach the DCMS to say that you intend to apply for Approved Status. Information on how to apply is on the DCMS website. DCMS staff are happy to receive enquiries, to offer advice on how to apply and to answer any questions. The process usually takes at least 2-3 months so begin well before you expect the loans to enter the UK
How do I apply for Approved Status?
The application process consists of a questionnaire about due diligence and your procedures for provenance research. This is submitted with examples of your exhibitions policy, loan form and case studies of a recent exhibition with examples of provenance research undertaken. If the museum cannot provide this supporting material and can’t supply supporting documentation to demonstrate how it undertakes provenance research, Approved Status cannot be granted.
So think ahead. If your museum already has good professional practices which include researching object history and looking for any suspicious gaps in provenance, if your loan forms are adequate and your staff trained in due diligence practices, you can go ahead and apply for Approved Status. If not, get these professional practices in place now before a lender suddenly asks for immunity and you find that an important loan can no longer take place.
Information is available on the DCMS website www.culture.gov.uk or by contacting Mark Caldon firstname.lastname@example.org or Andrew Calnan email@example.com
Freda Matassa is Director of Matassa Toffolo Ltd, providing collections management advice to museums and galleries as well as private collections. Former Head of Collections Management at Tate Galleries, she is one of the Advisers to the Department for Culture, Media and Sport on Approved Status applications. She is the author of Museum Collections Management: A Handbook (Facet Publishing 2012) and Organizing Exhibitions: A Handbook for museums, libraries and archives (Facet Publishing 2014)