The famous andalusian artist Pablo Picasso said once that “Art is the lie that enables us to realize the truth”. With this inspirational quote of one the most well-known artists of last century, Herrera & Partners lawyers in Bangkok have prepared this article and legal comments for art collectors in Thailand as we see a growth of interest among our foreign and Thai private clients interested in buying pieces of art. This trend sometimes responds to the passion of a buyer on a specific artist (his life, period in history, ideology etc) but in other occasions is only guided by the need to diversify the existing portfolio of investments looking for a high return of investment.
It is not common to find lawyers in Thailand with knowledge in the world of arts as this is still a very small field in the works of a lawyer in a South East Asian country. The fact that a partner of H&P in Bangkok is himself an art collector of two well-known European and Asian artists give our law firm an outstanding credential in the advisory services to secure purchases of art pieces in Thailand that no other law firm has yet.
During the last decade, from 2010 to 2020, there was a rapid growth of number of high net worth individuals in Thailand making Thailand having more billionaires than other wealthy countries such as Singapore. Our lawyers in H&P assisted some art auctions in Bangkok during 2018 and 2019 and we were engaged in consultations to procure purchases of pieces of art by different private clients. We have been quite familiar preparing international contracts to secure the purchase of paintings, legal due diligences on sellers and art galleries and also reviewing the provenance (the DNA of a piece of art). Nevertheless, we always advice that it is very important to consult with a lawyer with experience in this field as sometimes there can be some legal risks when it comes to purchase of traditional Thai art and sculptures as the pieces can be affected by some specific Thai regulations. Of course, we are referring to the heritage of Thailand and the private art collections.
The regulation to preserve and control the illegal trading of the national heritage is the Act on Ancient Monuments, Antiques, Objects of Art and National Museums, B.E.2504 (1961), last amended by the Act on Ancient Monuments, Antiques, Objects of Art and National Museums (No.2), B.E.2535 (1992). The protection of this Act covers the ancient monuments, antiques and objects of art. However, in this article prepared by Herrera & Partners lawyers in Thailand will be focused on the provisions regarding the antique and object of art.
Under this Act, the antique is referred to any antique movable property, both those produced by the man or nature, and the object of art is referred to any object skillfully produced by craftmanship which is high valuable in the field of art.
Possession
Under this Act, the person who possess the antique or object of art, may be ordered by the general director of the Department of Fine Arts to register such objects, if the general director considers that it has a value of art, history or archaeology.
Trading
The antique regardless of whether it is registered or not, may be prohibited to be traded in case where the general director see it should be conserved as a national property of Thailand. Similarly, the registered object of art, it should not be traded if the general director deems appropriate to preserve.
The penalty is imprisonment of not exceeding one 5 years or fine not exceeding 500,000 THB or both. Moreover, under the law, if the general director considers that such antique or object of art should become the national property, it has the power to purchase such antique or object of art.
Repair and Alteration
In order to repair, modify, or alter the registered antique or object of art, the possessor of the antique or object of art shall obtain the prior permission from the general director. Moreover, the general director may define some conditions for such repair, modification, or alteration.
The penalty is Imprisonment of not exceeding one 5 years or fine not exceeding 500,000 THB or both. In addition, if the registered antique or object of art are destroyed or being damaged, lose, or transferred to the new storage, the possessor is liable to inform the general director in writing within 30 days.
Transfer
The possessor is entitled to transfer the registered antique or object of art, but it is required to inform the general director in writing, specifying the name and address of transferee and the date of transfer within 30 days. Besides, in case of the acquisition of the registered antique or object of art by inheritance or the will, the heir is liable to inform the general director within 60 days from the date of acquisition.
The penalty is Imprisonment of not exceeding one month or fine not exceeding 10,000 THB or both. The transfer of the antiques or objects of art which are the national property and being in the possession of the Department of Fine Art are prohibited. However, if there are a lot of similar antiques or objects of art, it may be permitted to being transfer, sale or exchange under specified circumstances.
Business
The operation of the business of trading the antique or the object of art which are unprohibited to trade, shall be obtained the license from the general director.
The penalty is the Imprisonment of not exceeding 3 years or fine not exceeding 300,000 THB or both. Likewise, the person who wants to export the antique or object of art regardless of whether is registered or not, are not prohibited to export unless it obtains the license from the general director.
However, the unregistered objects of art which are not more than five years old or the international transit of the antiques or objects of art are not subject to such prohibition.
The penalty is as follows:
Exportation the unregistered antique
-Imprisonment of not exceeding 7 years or fine not exceeding 700,000 THB or both.
Exportation the registered antique and object of art.
-Imprisonment of 1 to 10 years and fine not exceeding 1,000,000 THB.
Moreover, there are other provisions to control the wrongful possession of the antique and object of art, such as; the person who finds the antique or object of art which is buried or abandoned and claim as the owner, shall be subject to imprisonment not exceeding 7 years or fine not exceeding 700,000 THB or to both. In case of the person who obtain or purchase such wrongful antique and object of art, shall be subject to imprisonment not exceeding 5 years or fine not exceeding 500,000 THB or to both. If such wrongful antique and object of art are trade for the commercial purpose, the offender shall be subject to imprisonment not exceeding 7 years or fine not exceeding 700,000 THB or to both.
To sum up, due to the growth of investments in art in Thailand by private individuals and Thai wealthy families, we recommend engaging a law firm with expertise in this field such as H&P to minimize the legal risks in the purchase of art pieces and sculptures, as there is sometimes a thing line of separation between the protection of the national heritage and the interest of some family offices and private individuals.
If you need to speak with a lawyer in Thailand about purchase and investment on art, please contact our Bangkok lawyers at [email protected]
