In June 2011 the City of Ghent turned down the claim of the von Klemperer heirs to the painting, now in the Museum of Fine Arts in Ghent. The panel it had appointed concluded that the painting was not sold under pressure and that its ownership by Ghent was indisputable both in Private International Law and in the context of post-war Allied and West German restitution laws.
Professor Flamée, a distinguished Belgian lawyer, has analysed the decision, examining whether the panel correctly drew the line between fairness and arbitrariness in accordance with the Washington Principles. He questions whether the panel should have been tasked with combining the two different approaches, 'positive law' and 'fairness', looks at whether the panel took into account all known facts and whether, when taken into account, a different decision might have been reached. He investigates who bears the burden of proof and for which facts, and queries whether any part of the burden should have rested on the claimant. Finally, he explores the concept of fairness and how the prescription of fairness derived from Washington might apply to works of art acquired prior to 1998.
The study, is published by kind permission of Professor Flamée. To read it, click here. The original decision of Ghent is available here.
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