(4) In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural artefacts, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances.
There is no international standard of due diligence, nor a legal definition of due diligence used worldwide. Often reasonable due diligence will depend on the circumstances.
The UNIDROIT Convention (1995) sets out some useful guidance of what might be considered reasonable due diligence, although this is by no means exhaustive.
Whilst it is always prudent to check a lost art database (for example the Interpol Database, or national, or private, databases), cultural property that has been illegally excavated is unknown except to the looters and therefore cannot be recorded on any database. Further, during conflict or a natural disaster it may be difficult or impractical for museum, institution, or state to assess the damage and report its losses. Therefore, it is good practice for a purchaser to also make enquiries about the origin of an artefact and its provenance which, depending on the circumstances, may involve some research or assistance from a third party such as an expert or an institution with the relevant expertise. A purchaser should also consider who he/she is acquiring the artefact from and the circumstances of the purchase.
It is also best practice to consult the ICOM Red Lists which list the types of artefacts that are considered to be at “high risk” of being looted or illicitly trafficked. The ICOM Red Lists are a useful tool that a purchaser can use to assess whether caution or enhanced due diligence may be required in the circumstances. Each of these steps in the due diligence process should be recorded by a purchaser to support their position if it is called into question at a later date.
If a purchaser suspects that an artefact may have been illegally exported from its country of origin, they should not acquire the artefact and should seek further advice. Whilst some international conventions recognise a right to fair compensation to an innocent purchaser, fair compensation does not necessarily mean that the purchaser will receive the price he/she paid for the artefact.
It is also import to realise that the standards of due diligence checks do not only apply to those hoping to purchase items, but to all those involved in the process – including those who ship the objects.
Code of Ethics
There are two key Codes of Ethics to be followed relating to dealing in and purchasing antiquities.