Due Diligence Procedures For Loans into National Museums Scotland Planning An awareness of due diligence processes underpins exhibition planning, and curators and exhibition officers should consider this at the outset of planning, when first identifying possible loans and before making the initial request. Before making the initial request, the current owner must be identified (check with the contact person that they are the owner and not a third party). Initial request When making the initial request, curators should inform the potential lender that National Museum Scotland is unable to borrow any object unless due diligence has satisfactory been undertaken. If a Lender requests Immunity from Seizure, the curator should notify the Loans Section immediately. Owner provides provenance information When a Lender agrees to lend, the Loans Section will issue a Due Diligence Form (Appendix A). The form seeks an account of provenance from the Lender, along with supporting documentary evidence. This should provide confirmation of valid legal title and information of any third party claims to ownership. When returned to the Loans Section, copies of the forms and supporting evidence are forwarded to the relevant curator for assessment. Curator assesses provenance information The curator assesses the information supplied by the Lender using the Due Diligence Provenance Checklist (Appendix B). This will ensure that the object has, as far as possible, a clear history of ownership from its date of creation (no gaps in provenance history), the provenance is accurate (no signs of erroneous information) and to confirm that the Lender has the legal authority to lend the object (no irregularities concerning acquisition or current title of ownership). The provenance should adhere to the principles of provenance and provenance research, as set out in Combating Illicit Trade: Due Diligence Guidelines For Museums, Libraries and Archives on Collecting and Borrowing Cultural material (DCMS 2005), specifically checking the following: Provenance from the period 1933 1945 for the possibility that the object is a holocaust spoliation item (for reference see: Spoliation of Works of Art during the Holocaust and World War II period: Statement of Principles and Proposed Actions, issued by the National Museum Director s Conference in 1988) The object s country of origin and history of transfer or ownership in other countries since 1970 to ensure that the object has not been illegally exported from its country of origin (for reference see: UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, and the Dealing in Cultural Objects (Offences) Act 2003) Page 1 of 7
The object materials, to ensure any organic materials comprising the object are not illegally obtained endangered species (for reference see: Convention on International Trade in Endangered Species of Wild Fauna and Flora) the object is not one of those listed objects particularly at risk from looting, as designated by ICOM (International Council of Museums) to combat against the illicit traffic in cultural property (for reference see: ICOM red list) The object s acquisition history is in accordance with the ICOM Code of Ethics (for reference see: ICOM Code of Ethics) The object s acquisition history is in accordance with SPECTRUM: UK Documentation Standard for Museums (for reference see: SPECTRUM: UK Documentation Standard for Museums) Where the provenance supplied by the Lender is incomplete or there is doubt concerning the information supplied, the curator must undertake further research. This will include, where appropriate: The Art Loss Register Consultation with fellow curators and scholars Auction sale catalogues Published and manuscript catalogues of public and private collections The curator must complete, sign and return the form to the Loans Section. The curator must attach copies of any further information obtained from other sources and notes of additional research carried out. Professional judgement Where there is a genuine absence of provenance information or reason to believe the information provided is inaccurate after all these checks have been carried out, a professional judgement must be undertaken. Gaps in the provenance of an object do not necessarily mean that a loan should not proceed. The information gathered from the due diligence checklist needs to be considered as a whole and a judgement reached about the risks associated with the proceedings. The Curator's Due Diligence Checklist is colour coded to assist with the decision making process, with questions highlighted in red are the questions that will immediately identify higher risks, whilst those highlighted in pink are the questions that should prompt further probing. A professional judgement must consider whether the objects incomplete provenance is likely to include anything which may contravene the National Museums Scotland's due diligence policy; specifically if the object is likely to have been: Spoilated Illegally excavated Illegally imported or exported Stolen If there are gaps in provenance, but the curator has made a professional judgement to proceed with the loan, the curator must additionally record on the Curator's Due Diligence Checklist how this decision has been reached. Where the curator has doubts regarding the provenance of the object exist, this should be reported to the Loans Section. The Due Diligence panel must then be consulted and the loan may not proceed until a professional judgement has been reached. Page 2 of 7
Documentation Documenting the process is imperative, so National Museums Scotland can affectively demonstrate that it has exercised due diligence Dated records of research notes, correspondence, documentary evidence obtained and notes of any conversations must be kept and passed to the Loans Section for filing with Lender Records The checklist for each object must be completed, signed by the curator and passed to the Loans Section for filing with the Lender records If a decision is taken not to proceed with the loan of the work for provenance reasons, the documentation must be passed to the Loans Section for filing All records regarding due diligence checks will be retained and kept on file indefinitely in the Loans Section. Responsibilities Curators are responsible for carrying out provenance checks on all objects being considered for loan into National Museums Scotland The Loans Section carries out a supporting role in the gathering, sorting and storing of information The National Museums Scotland Due Diligence Panel is responsible, along with the Loans Section, for ensuring procedures are followed. The Due Diligence Panel is responsible for providing reports to the Director. The Director has overall responsibility for ensuring the appropriate due diligence procedures are carried out. Page 3 of 7
Appendix A: Due Diligence Form National Museums Scotland operates an ethical loans and acquisitions policy and recognises and complies with the ICOM Code of Ethics and the (UK) Museums Association Code of Ethics. National Museums Scotland recognises and complies with the principles of Combating Illicit Trade (DCMS 2005), the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property and the Convention on International Trade in Endangered Species of Wild Fauna and Flora. National Museums Scotland will not knowingly acquire, borrow or display any work for which there is reasonable cause to believe that the work may have been stolen, illegally exported or illegally imported from its country of origin. In order to assist us in carrying out Due Diligence, please could you supply an account of the provenance of object and supply copies of documentary evidence to support you account where available/applicable. Object Details Name / Title of object... Object reference number... Artist / Maker... Date of Production... Account of Provenance Please continue on a separate page as necessary Provenance History: Exhibition History: Bibliographical References: Types of Documentary Evidence Supplied to Support Account (please indicate): Museum acquisition record Page 4 of 7
Export licence from country of origin Publication in a reputable source prior to 1970 Will / inventory Photographic evidence Family correspondence Auction catalogue entry Excavation field notes Receipt of purchase Other (please specify) Please supply details if you are aware of any prior or current third party claims to the object: Signature Please confirm that you have full legal title to this object Signed:... Date:... Full Name:... Official Position:... Page 5 of 7
Appendix B: Due Diligence Provenance Checklist Source* name: Exhibition: Object: Due Diligence completed and satisfactory? Refer to DDP Provenance checked by: (Curator) Date: Please indicate below the type of evidence gathered: Museum acquisition record Export licence from country of origin Publication in a reputable source prior to 1970 Will / inventory Photographic evidence Family correspondence Auction catalogue entry Excavation field notes Receipt of purchase Other (please specify) 1.1 Is the year of the object's creation known? 1.2 Is the place of the object's creation known? 1.3 Is the object a) unique b) mass-produced c) other (e.g. edition of 3)? 1.4 Can it be determined whether an object has, from the point of its creation, been regarded as a thing of value by its owners? 1.5 Is the object published or has it been the subject of previous scholarly research? If so, provide further details: 2.1 Has the object been created in, or removed from a region affected by conflict, at a time of conflict? 2.2 Is there evidence that the object was present in Germany in the period 1933 to 1945? 2.3 Is there evidence that the object was present in any country that was not under the control of its own legally constituted sovereign government in the period 1933 to 1945? 2.4 Is the object of a type or country of origin featured on the ICOM Red List? 2.5 If the object has been exported from a country since 1970, is a copy of the export licence or permission in existence? Page 6 of 7
3.1 Can the source* provide evidence of good title to the object? 3.2 Can the source* provide evidence of how they obtained ownership? 3.3 Can the source* show from whom they obtained ownership? 3.4 Can the source* provide evidence of the previous history of the object? 3.5 Are there gaps in the object's provenance from the time of creation or excavation? 3.6 Does the evidence produced by the source* indicate alternative, independent sources of information? 4.1 Is there evidence of the object having been the subject of prior or current claims from a third party? 4.2 Is it possible to determine the outcome of any prior claim from a third party? 4.3 Has the object been checked on the Art Loss Register or any other art loss database? If other, please specify and provide date of check 4.4 Can it be determined whether materials derived from endangered species of flora or fauna have been used in the object's creation? *Denotes lender, donor, vendor, or agent acting on their behalf 5. Additional comments: Page 7 of 7