Provenance research within Cabinet Corinne Hershkovitch

Provenance research is generally understood as a transdisciplinary field aimed at reconstructing the history and trajectory of cultural property from its creation to its current location.

Its “requirement” may be traced back to 1998, the year in which the Washington Principles were adopted, in connection with post-war reparations. It is, however, no longer confined to reparations for the Second World War, and now extends to other chronological and geographic contexts, including objects collected in colonial settings, objects illicitly displaced in the context of contemporary armed conflicts, illegal archaeological excavations, and so forth.

Provenance research is developing today at a notable pace and is carried out by distinct professional communities. Beyond "chercheurs de provenance", professionals in other fields are required to carry it out and to use it, including art dealers, auction houses, experts, curators, lawyers, and judges. At the same time, academic programmes are being created, conferences are multiplying, private and public initiatives are emerging, and the media increasingly focus on cases involving doubts as to the provenance of prestigious works and on claims for cultural property.

Although art historians have practised it for decades - for example in order to establish the prestigious origin of a work - and despite the recent acceleration of this field in France, provenance research still suffers from many shortcomings. The field has not been theorised, and academic training programmes are not yet sufficiently established for their relevance to be assessed. Certain essential areas of teaching remain absent despite their importance for researchers, including digital tools. To date, no professional body regulates the practice or addresses methodological and ethical shortcomings in particular^[1]. Ethical frameworks and the legal system also lag behind this practice.

These factors lead to the following conclusion: provenance research, whose object is not clearly defined and whose method has not been standardised, lacks consistency in its practice, or rather in its practices. Many questions remain open, including the functions attributed to this field and the motivations that drive it, as well as its hybrid status, situated between a specialism within art history and an autonomous discipline.

I. Provenance research within an art law firm

Provenance research is most often perceived as a museum activity, carried out by art historians for the purpose of advancing scholarly knowledge. It also plays an important role in the art market, in connection with the due diligence obligations incumbent on art dealers and collectors. In that sense, it permeates other professional fields, including law.

Cabinet Corinne Hershkovitch has been an active witness to these developments and to the growing place of provenance research for almost thirty years. Provenance research is intrinsic to many matters handled by the firm, whether advisory or contentious. Certain emblematic cases have set a benchmark and illustrate how provenance issues have shaped legal practice.

In 1999, the Cour d'appel de Paris upheld the claim made by Cabinet Hershkovitch on behalf of the Gentili di Giuseppe family concerning five MNR works (musées nationaux récupération), found in Germany after the Second World War and returned to France to be restored to their lawful owner. In a decision dated 2 June 1999, the Cour d'appel de Paris recognised the spoliative character of the auction held at the Hôtel Drouot in Paris between April and May 1941, during which the five claimed works were sold. It therefore held the sale void on the basis of the provisions of the Ordinance of 21 April 1945 and ordered the Musée du Louvre to restitute the five looted works to the heirs of Federico Gentili di Giuseppe, a Jewish art collector. Establishing the spoliation required retracing the works’ trajectory and analysing successive transfers of ownership. At that time, the approach was empirical and the research was conducted by Corinne Hershkovitch herself.

A few years later, the Gimpel case once again required the firm to examine the provenance of works in order to obtain their restitution. The heirs of René Gimpel, an art dealer spoliated during the Occupation, represented by Cabinet Hershkovitch, sought the restitution of three works by André Derain held by the musée national d'art moderne de Troyes and the musée Cantini in Marseille. The Cour d'appel de Paris again recognised the spoliation and held the sales void in a judgment dated 30 September, 2020, ordering the restitution to the Gimpel family of the three paintings, which formed part of the national collections. Following a dismissal by the tribunal judiciaire de Paris on 29 August 2019, Cabinet Hershkovitch instructed independent provenance researchers to prepare a report. The Cour d'appel de Paris emphasised the report's scientific quality and treated it as a "faisceau d'indices graves, précis et concordants" (a body of serious, precise and consistent indicia) capable of establishing proof of spoliation.

Alongside its legal activity, Cabinet Corinne Hershkovitch plays a significant role in awareness raising and training through publications, conferences, teaching and media interventions. Last February, Corinne Hershkovitch spoke at a conference entitled “Obligations de restitution ? Du traitement des biens culturels issus de contextes problématiques" (Obligation to restitute. On the treatment of cultural property from problematic contexts), organised by the Fondation pour le droit de l'art and the Centre universitaire du droit de l'art of the University of Geneva, where she presented the subtleties of French law in cases involving the good faith acquisition of cultural property with problematic provenance. She chairs the Association pour le soutien aux travaux de recherches engagées sur les spoliations (ASTRES), which hosts the Marcel Wormser Prize, intended to reward the work of young provenance researchers.

II. Recruitment of a provenance researcher within Cabinet Corinne Hershkovitch

In December 2023, under a convention industrielle de formation par la recherche (CIFRE), the firm recruited a doctoral researcher whose work seeks to theorise provenance research and thereby rationalise and systematise a practice that is now plural.

Marie Duflot works under the supervision of Rainer Maria Kiesow, director of studies and vice president for research at the École des Hautes Études en Sciences Sociales (EHESS), and her research is hosted by the Centre Georg Simmel.

The approach of this research work will necessarily be comparative — and will seek to identify what is specific to France by reference to Germany, Switzerland and other relevant States — interdisciplinary and open — and the integration of lawyers into this reflection is not a given — global — it will transcend the well established French trichotomy between Nazi spoliations, colonial collections and contemporary illicit trafficking. The aim is to rationalise provenance research methodology by focusing in particular on access to sources, including private archives, on the nomenclature of research reports, and on how those reports are understood and handled by legal professionals, lawyers and judges alike, including in relation to the taking and assessment of evidence in litigation.

The arrival of a provenance researcher within a law firm demonstrates that it is possible to conduct scholarly projects on the provenance of cultural property outside museums, in direct connection with practice and practitioners. This new configuration makes Cabinet Corinne Hershkovitch a laboratory and demonstrates its attentiveness to both professional and academic needs.

Embedding provenance research within Cabinet Corinne Hershkovitch responds both to a scientific requirement and to client demand. The importance of provenance research is well established in matters concerning spoliations perpetrated during the Occupation and submitted to the CIVS. Provenance research is also essential in enabling art market actors to meet the requirement to carry out due diligence at the time of acquiring cultural property, as defined by the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and to ensure the authenticity of a work. Finally, museums are directly concerned and, in some cases, are seeking independent experts, as shown by the recent research mission conducted under the aegis of Cabinet Hershkovitch at the musée des Beaux-Arts de Rouen.