The importance of due diligence for the value of a collection. Sandrine Giroud
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1 The importance of due diligence for the value of a collection Sandrine Giroud Alrud Moscow, 24 November 2017
2 How to enjoy art peacefully and optimize its value Emotion Art Privacy Sustainability 2
3 The value of art Art & wealth management: art is part of a diversified portfolio Art-secured lending Art as a financial invesment Risk managing and regulation 3
4 New era: finance & transparency New world Interests at stake Great Wave off Kanagawa, Hokusai 4
5 Factors of change Ryolovlev v. Bouvier Wildenstein case 5
6 When buying Cultural goods Condition Appraisal Provenance (Stolen art) Contract Applicable law & Disputes Intellectual property Insurance Customs & Taxes 6
7 When collecting Collector s objectives Divorce Death Legacy Legal planning Taxes Applicable law to the estate and matrimonial property regime Legal structures: e.g. direct ownership, companies, trusts, foundations, donation to public museums Best practices 7
8 Salvator Mundi, Leonardo Da Vinci 1958: private sale USD : auctioned at Sotheby s USD 80 million 2011 : private sale USD 127 million 2017: estimated price USD 100 million sold for USD 450 million 8
9 Footman with samovar, Malevitch (1) Swiss Federal Supreme Cour decision (139 III 305 dated 18 April 2013) Buyer considered in «bad faith» 9
10 Footman with samovar, Malevitch (2) Buyer: Was considered experienced collector Bought from a reputable gallery Knew the person who later claimed restitution and who never indicated the theft of that painting Asked for a rep & warranty on the seller s ownership rights Checked INTERPOL but USSR was not a member Demanded an authenticity report by a specialist who mentioned a rumour that there was a stolen Malevitch painting on the market Checked with a previous auction house that refused to buy 10
11 Footman with samovar, Malevitch (3) Swiss Federal Supreme Court considered that this measures were insufficient buyer in bad faith no title over the artwork and restitution 11
12 The tide of AML / CFT regulation 2012 FATF recommendations: serious tax offence becoming predicate offence to money-laundering 2015 UN resolution 2199: underlining Member States obligations to take steps to prevent terrorist groups in Iraq and Syria from benefiting from trade in oil, antiquities and hostages 2016 Luxembourg: all entities operating in the Luxembourg freeport (including e.g. transporters) subject to AML regulation 2017 EU Commission supranational risk assessment of money laundering and terrorist financing: recommendation to include auction houses, art and antiques dealers and specific traders in high-value goods in AML list of obliged entities 12
13 Self-regulation and best practices initiatives 2012: Basel Art Trade Guidelines 2017: The Responsible Art Market Initiative 2017: Art Basel Art Market Principles and Best Practices 13
14 The Responsible Art Market Initiative 14
15 What due diligence? Art Transaction Due Diligence Toolkit Client Artwork Transaction Consultation NOW 15
16 RAM Art Transaction Due Diligence Toolkit The Toolkit comprises the following documents, which you can access below: Due Diligence Checklist Red Flag List Due Diligence Explanatory Notes Consultation until 30 November 2017: 16
17 Due diligence matters Ensures the initial value of your collection Preserves your collection from collateral costs (legal, reputational or financial costs) Allows to leverage the value of your collection 17
18 Questions? 18
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