Alle, die sich in den letzten Monaten sorgen über die Zukunft des Warburg Institute in London gemacht haben, wird das Urteil des Gerichtshofes vom 6. November 2014 begrüssen. Die  Pressemitteilung des Institutes folgt. Danach ein Statement der Universität London. Am Ende eine Reihe von Links zum Hintergrund.

PRESS RELEASE:

Warburg Institute safe as High Court rules contents not the property of University of London

6^th November 2014

To the benefit and relief of scholars worldwide, the High Court has rejected the University of London’s claims that all additions to the Warburg Institute since 1944 belong to the University, and instead agreed that they form part of the Institute.  Furthermore, the judge, Mrs Justice Proudman, held that the University is obliged to provide funding for the activities of the Warburg Institute.
Leticia Jennings of Bates Wells Braithwaite, who advised the Advisory Council of the Warburg Institute, commented:  “This decision ensures that the wealth of important material housed within the Institute will remain available, as before, in its entirety, and that the University will not be free to in any way restrict the access of the many scholars who use and rely on the Institute’s outstanding resources.”
The Institute grew out of the private library of the art historian Aby Warburg (1866-1929), who collected books in art history, literature, intellectual history, religion and the history of science and magic.  As a Jewish institution based in Germany, the Institute was forced to close, and its very existence was threatened by the Nazi-organised book-burnings of April 1933. To escape destruction, the entire library of 60,000 books, as well as photographs, papers and furniture, were shipped to the safe-haven of London in December 1933. Many of the Institute’s staff also transferred to London.
After years of negotiation involving members of the Warburg Family, the University of London, distinguished scholars and philanthropists, the University of London became trustee of the Warburg Institute, to hold it on charitable trust pursuant to the terms of a 1944 Trust Deed. The Institute has since grown into a world class teaching and research institute, much respected and sought after by academics worldwide. 
The Trust Deed obliges the University to maintain and preserve the Warburg library in perpetuity, to house it, and to keep it adequately equipped and staffed as an independent unit. Leticia Jennings stated:  “The contemporaneous evidence leading up to the signing of the Trust Deed shows that the transfer to the University of London was on the condition that the University accepted these obligations. This judgment has confirmed that the University must maintain the Institute as ‘an independent unit’, and that the University is not entitled to use the name and prestige associated with the Warburg Institute to obtain funds, but to then apply those funds to the University’s general purposes.”
In recent years the University had charged a proportion of its total estate expenditure to the Warburg Institute, meaning that the once solvent Institute was left with a significant deficit as it was used, in effect, to subsidise the University’s corporate property. The judge held that the University’s conduct in this regard is not permissible and “flies in the face” of the terms of the Trust Deed.
The judge also clarified the important role of the University in relation to housing the Warburg Institute: whilst the University continues to own the building at Woburn Square, it has a binding obligation to house the Institute in a suitable building close to the University centre in Bloomsbury.
Despite the judge’s clear ruling, following a very detailed review of the evidence, the University has decided to seek permission to appeal. 
In response to the judgment, Librarian and Acting Director of the Institute, Dr Raphaële Mouren, commented:  “Whilst I am very pleased that this judgment appears to mean that the intellectual resources of the Warburg Institute, including its world renowned library, will be preserved for future generations of scholars working in the humanities, I am very disappointed that the University has decided to focus on an appeal. I very much hope it will reconsider, and commit to working with us to strengthen the Institute for the benefit of the academic community and enhancing our corpus of scholars.”
The Chairman of the Advisory Council, Professor Margaret McGowan, commented:  “The Advisory Council was pleased to receive the judgment representing years of hard work, and had hoped that the University would agree to enter into discussions and begin to work together in the best interests of the Institute and the University. We are frustrated that the University appears to wish to continue to spend its time and money on furthering the legal dispute rather than find a solution to secure the Warburg Institute’s long-term future. The Advisory Council remains very grateful for the immense support it has received regarding this matter, in particular from the American Friends of the Warburg Institute and from The Polonsky Foundation, without whom its successful defence of the matter would not have been possible.” 

About Bates Wells Braithwaite:
BWB, founded in 1970, is a City law firm servicing a wide range of businesses and institutions. It is also the leading charity and social enterprise law firm in the UK, acting for thousands of charity clients. The breadth and quality of its work is acknowledged by the UK’s two independent directories, Legal 500 and Chambers UK, in 21 areas (http://www.bwbllp.com).

THE STATEMENT OF THE UNIVERSITY OF LONDON:

University of London pleased with court's decision regarding the Warburg Institute
Thursday 06 November 2014

The University of London can announce that this morning Mrs Justice Proudman formally handed down her judgment on the Warburg case.


The University, the Attorney General and some of the Advisory Council of the Warburg Institute were involved in a legal dispute over matters relating to the 1944 Trust Deed and what it covers.
The Judge has found in favour of the University on almost every point that was of importance to us.

In summary, she has confirmed:
The University’s ownership of the building that houses the Warburg Institute.
That block grant funding from the Higher Education Funding Council for England (HEFCE) belongs to   the University and not to the Warburg.
The University’s internal governance arrangements that apply to the Warburg Institute (which are the same as those applied to all the Institutes of the School of Advanced Study), are in line with the 1944 Trust Deed.
The University has the right to charge the Warburg for services provided to it.
That there is in general no unacceptable conflict of interest for the University in managing the Warburg, since this is what the founders of the Institute envisaged in the Trust Deed, although she has criticised the use of our estate-wide service charge.

The Judge also confirmed that the books which have been gifted to or purchased for the Warburg since 1944 are as much part of the Trust as the collection it first brought into the University. The University welcomes this conclusion, since, despite recent misleading headlines, the University has never had any intention of splitting the collection.
The judgment leaves an area of uncertainty around internal funding mechanisms. While the Judge makes clear that we can recover the actual cost of the running of the Warburg Institute, she also says that estate-wide service charge does not “chime with the Trust Deed”. We are considering the practical implications of this.
The Vice-Chancellor, Professor Sir Adrian Smith, said, “I am delighted that we now have clarification on the main issues raised before the Court. The University has always maintained its desire to preserve the vision of Aby Warburg. Now, we must look forward, and get back to the task of supporting this unique institute and the academic community who value it so highly.
“The University is aware that over the course of the proceedings, there were individuals and interest groups claiming that we intended to split the collection. However, these claims were always wholly unfounded and we absolutely reject them. We are also aware of rumours that there were other interested parties wanting to move some or all of the collection to Hamburg or New York. Today’s ruling will ensure that we keep the collection in the University here in London.
“The University’s position throughout has been that this case should never have been brought to court. The financial and opportunity cost to us has been serious. We look forward to enabling the Warburg Institute to recover its role in humanities scholarship under new leadership. The University and the Advisory Council are in the process of making an appointment of the Warburg’s next Director.”

This somewhat contradictory and, at turns, seemingly disingenuous statement concludes with the puzzling assertion that the University will enable „the Warburg Institute to recover its role in humanities under new leadership.“  The new, changed situation might attract more candidates for the position of Director of the Warburg were it advertised now, rather than in the midst of a legal controversy that held the promise of a possible demise of the Institute.

PRESS:

THE – Times Higher Education:

Warburg Institute court judgment handed down

6 November 2014, By Jack Grove

Both institute and University of London claim success

Both the University of London and the Warburg Institute are claiming success in a long-running legal battle over the institute’s independence after a High Court ruling was published.
The Warburg Institute, which holds about 350,000 books in its Bloomsbury library, was originally established in Hamburg in 1900 by Aby Warburg, a Jewish intellectual.
The collection of about 80,000 books were shipped to London in 1933 to escape destruction by the Nazis and were accepted by the University of London under a deed of trust in 1944.
However, tensions between the university and the Warburg, regarded as one of the world’s leading arts and humanities libraries, have grown in recent years since London more than doubled an estates charge on the institute in 2007-08.
The university says the “space charge” – which it says rose from about £278,000 in 2006-07 to £643,000 in 2007-08 - is line with normal full-economic cost principles used by other universities.
However, the Warburg claimed the charge, plus the withdrawal of other funds, made the institute’s position untenable and was a breach of the 1944 trust deed, which said it should be “adequately equipped and staffed as an independent unit”.
The two parties were unable to reach an agreement and, following the involvement of the Attorney General and the Charity Commission, the matter finally came to court this year.
In a judgment published on 6 November, Mrs Justice Proudman finds “the levying of space charges…is not, to my mind, permissible”.
The “UOL only has a right to be indemnified in respect of the actual, properly incurred expenditure on the Institute…not in respect of UOL’s costs on its other property”.
“The imposition of university-wide space charges flies in the face of this provision as it merely treats the Institute as a constituent part of UOL without regard to its special character or its position as an independent unit,” the judgment continues.
However, she gave the university leave to appeal four separate parts of her decision. It has three months to consult its trustee and decide whether it wishes to take the case, which it says has already cost the university “hundreds of thousands of pounds”, to the Court of Appeal.
Margaret McGowan, chair of Warburg’s Advisory Council, said after the hearing that it was “pleased to receive the judgment representing years of hard work” and welcomed the judge’s ruling on space charges.
“We are frustrated that the university appears to wish to continue to spend its time and money on furthering the legal dispute rather than find a solution to secure the Warburg Institute’s long-term future,” she added.
Leticia Jennings, of solicitors Bates Wells Braithwaite, which represented the Warburg, said she was pleased the “High Court has rejected the University of London’s claims that all additions to the Warburg Institute since 1944 belong to the University, and instead agreed that they form part of the Institute”.
“Furthermore, the judge…held that the University is obliged to provide funding for the activities of the Warburg Institute.”
However, the university claimed the “judge has found in favour of the university on almost every point that was of importance to us”.
These points include noting that the block grant funding from the Higher Education Funding Council for England belongs to the university, not to the Warburg, and that its governance arrangements are in line with the 1944 trust deed.
Vice-chancellor Sir Adrian Smith said he was “delighted” to have clarification on the main issues raised before the court.
“The university has always maintained its desire to preserve the vision of Aby Warburg,” he said.
“Now, we must look forward, and get back to the task of supporting this unique institute and the academic community who value it so highly.”
He denied that the university had ever wanted to split the collection, calling the claims “wholly unfounded”.
“We are also aware of rumours that there were other interested parties wanting to move some or all of the collection to Hamburg or New York”, he said, adding that “today’s ruling will ensure that we keep the collection in the university here in London”.
http://www.timeshighereducation.co.uk/news/warburg-institute-court-judgment-handed-down/2016829.article

New York Times Blog (ArtsBeat):

Warburg Institute Claims Victory After Court Ruling in Dispute With University of London

November 6, 2014

Both the Warburg Institute and the University of London, which houses it, claimed victory on Thursday after a ruling by London’s High Court that sought to clarify the university’s obligations to the institute, which has a world-renowned humanist library founded by Aby Warburg, a scion of the German banking family.
In recent years the university had charged the Warburg increasingly large fees for the use of the university-owned building that houses it, placing the institute in financial peril and causing concern that the university might want to move it and split up its collections, which were organized according to a unique system.
The judge said that the university’s fee-collecting system “flies in the face” of the deed that requires the university to safeguard the institute’s “special character.”
In a statement the Warburg said that the ruling came “to the benefit and relief of scholars worldwide.” Leticia Jennings, a lawyer who represented the institute, said that the ruling made clear that the university “is obliged to provide funding for the activities of the Warburg Institute” and maintain it “as an independent unit” within the university. She added that the ruling meant that the collection “will remain available as before, in its entirety and that the university will not be free to in any way restrict the access of the many scholars who use and rely on the Institute’s outstanding resources.”
In a separate statement the University of London said that it had never intended to break up the Warburg’s collection and that the ruling left “an area of uncertainty” about how university funds the institute. It acknowledged that the judge had “criticized” the university’s practice of charging institutes for the use of university real estate. The university, which has said that the case should never have gone to court, plans to appeal the ruling.
http://artsbeat.blogs.nytimes.com/2014/11/06/warburg-institute-claims-victory-after-court-ruling-in-dispute-with-university-of-london/?_r=0

New York Times, 10. Oktober 2014:  http://www.nytimes.com/2014/10/11/books/warburg-institute-threatened-by-funding-woes.html

Bates Wells Braithwaite (Rechtsanwälte des Institutes):  http://www.bwbllp.com/knowledge/media-coverage/2014/11/07/warburg-institute-ruling-highlighted-in-the-times/

BACKGROUND PRIOR TO THE COURT RULING:

For more than a decade the Warburg Institute in London has experienced problems in its relations with the University of London, including problems relating to its structural position vis-à-vis its parent institution, namely, the University. In the past, and especially in 2010, it was repeatedly reported in the press that the University wanted to dismantle the Warburg Library and to integrate its book collection into the university libraries. These reports were credited by the then director of the Institute, Charles Hope. It was also reported that the University hoped to close the Institute. In recent days this question acquired a new actuality. The topic was treated a number of times in the British press. It even reached the pages of the Frankfurter Allgemeine Zeitung in a brief up-date article by Gina Thomas on 12 August (see infra). On August 10, in a remarkable editorial, The Guardian – Britain’s third largest daily newspaper with a target readership especially of urban, leftward-leaning liberal, progressive intellectuals, academics, writers, artists, and others – took a clear position in favor of the London Warburg Institute, concluding, „The best solution would be for the Warburg Institute to stay as it is and where it is. But if the University of London cannot fulfil its trust, it would be best for the library to return to Germany“ – a conclusion almost unthinkable until very recently.

The question was taken to the Attorney General of the United Kingdom, who advised that a court hearing be held to resolve the dispute between the Warburg and the University concerning the Deed of Trust which the University signed in 1944, when Aby Warburg’s library was conveyed to the University. This very brief document promises to maintain and preserve the collection “in perpetuity” as “an independent unit” (http://warburg.sas.ac.uk/home/aboutthewarburginstitute/trust-deed/ ), a commitment that the University hoped to modify through its legal challenge, following the failure to reach a compromise with the Warburg Institute in the years just past. The dispute was heard before the British High Court of Justice in London’s Rolls Building in June of this year. It was awaited that the judge would rule on what the Trust Deed means today, possibly deciding the fate of the Warburg Institute and its historic library and certainly making a ruling that would have wide-ranging implications for the future of the London institute.

In a recent statement, the Warburg itself described the situation regarding the High Court proceedings:  „The University issued proceedings to seek clarification from the High Court of what the trust comprises, what its obligations as trustee are, and whether its conduct (including in relation to the Institute’s finances and funding) is and has been in accordance with the provisions of the Trust Deed. The ten day trial of the matter, between the University of London, HM Attorney General and the Advisory Council of the Warburg Institute, concluded in London on 20 June. The parties are now awaiting judgment, sometime in the autumn” (http://warburg.sas.ac.uk/home/news/#c2297 ).

The Warburg Institute has always been intimately connected with the intellectual history of Germany and its wartime misfortunes, and, in recent years, Aby Warburg has assumed the rôle of a beacon pointing to a new future for German art history.

BACKGROUND IN PRESS REPORTS:

In 2010 the dispute between the Warburg and London University received notable attention in the press, including, among others, articles in the Frankfurter Allgemeine Zeitung and the Neue Züricher Zeitung.

Gina Thomas’s long first article in the FAZ appeared on 5 May 2010 („Was freie Geister gaben, nimmt der Bürokrat“, in: ‚Forschung und Lehre’, Seite N5). Following a discussion of the historical background, she reports the then current situation (which is not so different from the present one), drawing on sources within the directorate of the Warburg: „Jetzt ist die einzigarztige Forschungseinrichtung bedroht durch falsch verstandenes Effizienzdenken.“ Further, „(...) scheinen die gegenwärtigen Treuhänder [die Universität] nicht zu begreifen, was sie aufs Spiel setzen: Im Bemühen um Synergie effekte setzt sich die Universität London über frühere Zusagen hinweg und versucht Strukturen durchzusetzen, die nicht nur die Eigenständigkeit, sondern auch den besonderen Charakter von Aby Warburgs Gründung bedrohen.“
„Dabei führt das Institut bereits seit einigen Jahren einem Kampf an zwei Fronten. Zum einem wehrt es sich gegen Pläne, die dazu fühern könnten, dass die interdiszplinäre Forschungsbibliothek, die den Kern ihres Wirkens darstellt, aus ihrem eigenen Gebäude am Woburn Square ausquartiert und mit anderen Fachsammlungen in die Zentralbibliothek von Senate House eingegliedert wird, dem administrativen Zentrum der Universität. Zum anderen sieht sich das Warburg Institute durch drastisch erhöhte Raummieten in Bedrängnis gebracht. Diese Ausgaben schlucken mehr als die Hälfte der Subvention, die mit knapp 1,3 Milionen Pfund ohnedies knapp bemessen ist. Die Universität nimmt mit der einen Hand, was sie mit der anderen austeilt, mit dem Ergebnis, dass das Institut ein jährliches Defizit in Höhe von einer halben Million Pfund aufweist.“(...)
 „Dabei ist auch die Stiftungsurkunde nicht berücksichtigt worden. Statt seinen Forschungen über Vasari und Tizian nachzugehen, sieht sich der Warburg-Direktor Charles Hope genötigt, im Staatsarchiv von Kew zu stöbern, um zu belegen, dass die Universität sich den Absichten der Warburg-Familie wiedersetzt, hatte sie sich doch 1944 verpflichtet, die Bibliothek als eigenständige Einheit angemessen auszustatten, personell zu besetzen und auf Dauer zu bewahren. Hope hat sich in den neun Jahren seiner Direktorschaft vornehmlich damit beschäftigen müssen, das Warburg Institute gegen die Übergriffe zu verteideigen. (...) Im Licht dieser Fakten sieht die jetzige Einstellung der Universität wie Pflichtvergessenheit aus. Sie strebt unterdessen eine Änderung der Stiftungsurkunde an, um ihre Vorstellung realisieren zu können.“
Thus the Trust Deed, with its interpretation and its possible revision, has become the centrepiece of the contention (link to Trust Deed: http://warburg.sas.ac.uk/home/aboutthewarburginstitute/trust-deed/ .

Unlike the article of Gina Thomas, that of Marion Löhndorf in the Neue Züricher Zeitung of 23 June 2010 can be read online: „Das Gesetz der guten Nachbarschaft – Eine Rationalisierungsmassnahme der Universität London bedroht das Warburg Institute“ (http://www.nzz.ch/aktuell/feuilleton/literatur/das-gesetz-der-guten-nachbarschaft-1.6217520 ; Samstag 5. Juli 2014 – E-Paper). „Eine kulturhistorische Institution von Weltrang ist bedroht. Die Universität London will das Warburg Institute, dessen Eigenständigkeit per Stiftungsurkunde festgeschrieben ist, ihrer Verwaltung unterstellen. Mitglieder der Familie Warburg sprechen von einem Skandal.“  
Marion Löhndorf describes the problem as follows: „Die Universität London will separate Bibliotheken in ihrer Senate House Library zentralisieren, vor allem, um dort vorhandene Finanzlöcher zu stopfen. Alle bisher unabhängigen Bibliotheken und Institute würden unter dem administrativen Dach der Universität London zusammengefasst. Seit einigen Jahren schon erhält das Institut, das 1994 unter die administrative Hoheit der zur Universität gehörigen School of Advanced Study gestellt wurde, seine Zuschüsse aus der Hand ebendieser School. Macht die Universität ihre Pläne wahr, würde die Bibliothek des Instituts zwar nicht auseinandergerissen, aber einem zentralisierten System einverleibt und könnte ihre Fachkräfte, ihren Stab und ihre Bücher nicht mehr selbsttätig auswählen: Ihre Identität wäre gefährdet – und damit übrigens das, was das Institut nicht zuletzt für Spenden und gestiftete Nachlässe attraktiv macht.“
Löhndorf reports that the plans to re-house the Warburg date from as early as 2002: „Doch das Vorhaben, unabhängige Bibliotheken und Institute zu zentralisieren, besteht, so Charles Hope, Direktor des Warburg Institute, nicht erst seit den Tagen der Rezession. Schon seit 2002 habe es diese Bestrebungen gegeben.“
„Inzwischen ist die Universität bestrebt, die Stiftungsurkunde durch eine neue Vereinbarung in ihrem Sinne zu ersetzen. Unterdessen erhöhte sie die Raummiete für das Warburg Institute drastisch – um rund eine halbe Million Pfund pro Jahr –, wobei die finanziellen Zuwendungen an das Institut keineswegs entsprechend angehoben wurden.“
And, further, the Warburg family is indignant: „Aby Warburgs Enkel John Prag, im Beratergremium des Instituts sitzender Archäologie-Professor, sagte im Gespräch mit der NZZ: „Die Universität hat die Vereinbarungen der Stiftungsurkunde schon längst gebrochen. Die Auseinandersetzung mit der Universität London, die sich bereits seit zehn Jahren hinzieht, muss jetzt ein Ende haben.“ Der Hamburger Bankier Max Warburg, Sohn von Eric Warburg, einem Neffen Aby Warburgs, der 1944 die Stiftungsurkunde zugunsten der Universität London unterschrieb, findet deutliche Worte: „Aus dem ursprünglichen ‚Trust Deed’ geht eindeutig hervor, dass das Institut selbständig bleiben soll und auch selbständig zu finanzieren ist. Ich bin sehr enttäuscht über die jetzige Diskussion, und die Familie wird auch rechtlich alles unternehmen, um dagegen vorzugehen und das jetzige Vorhaben zu verhindern. Es ist bereits eine Menge in die Wege geleitet worden, und dieses wird mit Nachdruck verfolgt. Das Ganze ist ein Skandal!“

In the Art Newspaper (July-August 2010, Issue 215; online: 20 July 2010), Anna Somers Cocks wote that „The Warburg Institute is fighting for its life: The famous library founded by Aby Warburg for a special kind of research may lose its essential nature“ (online: http://www.theartnewspaper.com/articles/The-Warburg-Institute-is-fighting-for-its-life/21203 ). She defines the „University Threat“, which is not always simple to understand, but which seems largely unchanged: 
„So why is the Warburg fighting for its life against London University? Underlying the conflict is the University’s shrunken role since the big foundations such as University College and Imperial College went independent. This left their former governing body impoverished and without much to govern except its own library and bodies such as the Institute of Classical Studies, the Institute of Advanced Legal Studies and the Warburg, united in 1994 with others under the name of the School of Advanced Study.“
„There are now fears that the University plans to move the Warburg’s library from its building in Woburn Square and put it with its own library in its headquarters. In 2007 it squeezed the Warburg by raising its space charge by £500,000, which eats up half the Institute’s £1.3m annual grant so that it now has an annual deficit of half a million. Jill Kraye, the Institute’s librarian and a historian of philosophy, says, “They charge us eight times more for being an open access library”, and yet the whole point of Aby Warburg’s original conception was to be able to browse among the books.“
„The University is also trying to curtail the Warburg’s independence after “converging” the administration of the Warburg library into London Research Library Services, which will be appointing the Warburg’s next librarian, who will no longer be a scholar-librarian, as has been the case from Fritz Saxl onwards. (...).“
 „At this rate, there could soon be nothing left of the Warburg except a few Fellows detached from the library that not only gave birth to the Institute but is at the heart of what makes it such an influential and civilising place.“
„All this suggests that the University does not acknowledge its obligations under the 1944 trust deed, but what is almost more serious is that in its bureaucratic way the University seems to have lost sight of the human reality of what makes a place of learning and intellectual creativity. Administrative synergies will not do it; money and a fine building do not necessarily do it, as the Getty Research Institute has shown. Despite all its facilities, that has never stirred people’s minds much or aroused affection.“ (...)
„The Warburg, supported by its Advisory Council, has taken legal advice and has been told that the University is in breach of the 1944 trust deed, but the University wants to apply to the Charity Commissioners to amend the terms of the deed.“

Many other reports can be found through a somewhat maze-like blog thread assembled by Heinrich C. Kuhn of the LMU (Philosophie und Geistesgeschichte der Renaissance):   see  http://www.phil-hum-ren.uni-muenchen.de/php/Kuhn/ .  
 

Following the naming of Peter Mack as the new director of the Warburg in 2010, the Institute eschewed its former confrontation course, and the issue seemed to subside, or at least it faded from the public view, as the new leadership apparently did not feel that the Warburg’s cause had been served by intense public attention. But the story reawakened in recent months, with the University’s challenge to the Trust Deed in court.

A first news article, by Jack Grove, appeared on 19 June 2014, „Warburg Institute: library saved from Nazis awaits its fate. Collection could be broken up in legal action over 1944 deed of trust“, in: THE: Times Higher Education (http://www.timeshighereducation.co.uk/news/warburg-institute-library-saved-from-nazis-awaits-its-fate/2014023.article ). Here may be read: „Looming threat: the Warburg Institute’s 350,000 volumes could return to Hamburg or be absorbed into Senate House, (...)
The future of a “unique and extraordinary” library saved from Nazi Germany lies in the balance after the University of London launched a legal action to challenge its deed of trust. (...) That document promised to maintain and preserve the collection “in perpetuity” as “an independent unit” – a pledge that now appears onerous as the Warburg runs a reported £500,000 annual deficit. Representatives for both the university and the Warburg Institute were due to appear in a court in London’s Rolls Building this week after efforts to negotiate a compromise over the past five years have failed. A judgment on the validity of the 1944 deed, which is barely more than a page long, is expected in the autumn. If the university were to succeed, many Warburg supporters fear that the institute’s volumes would be divided up among Senate House Library shelves. (...) Further, there is speculation that a court defeat would mean that the collection would return to Hamburg where much of the Warburg family is still based. The US-based branch of the Warburg family are also known to have taken a keen interest in the case. Peter Mack, the Warburg’s director, declined to comment, as did the institute’s legal counsel.”

THE INDEPENDENT:

On the 24th of June 2014, there was printed in The Independent an article by Nick Clark, „High Court to decide the fate of the Warburg Institute’s historic Library“   (http://www.independent.co.uk/arts-entertainment/books/news/high-court-to-decide-the-fate-of-the-warburg-institutes-historic-library-9560670.html ). Here was written, „The university now wants the collection to remain part of the institution while the Warburg wants it to be entirely independent and free to move should it so desire.” (...) “Both sides are waiting to hear what the judge rules on exactly what the document, which is only just over a page, signifies. The Attorney General has insisted that after dialogue between the two sides failed, the dispute went to the High Court of Justice. The hearing ended last Friday and the judge is expected to rule in the coming weeks. The University hit back over reports that the library was under threat and could be broken up or sent back to Hamburg where it originated.”

Shortly thereafter the Warburg issued its only public statement on the matter, stating its position and refuting parts of the Independent’s article. 

In recent discussions much hinged on the interpretation of the Trust Deed of 1944. In this document the University promises to preserve the Warburg as an independent unit. Here ‚independent unit’ must mean as a separate unit, that is the Bibliothek als eigenständige Einheit, and not that the Institute is independent of the University to make its own decisions, as sometimes suggested. The Trust Deed states: „The management and control of the Institute (and Library) shall be vested in the university (...).“ In such trust deeds clauses of perpetuity have proved problematic, difficult to maintain and enforce in common law over long periods of time (cf. ‚Rule against perpetuities’, inter alia).

Just as Deeds of Trust cannot have perpetual validity and must account for, for instance, institutional transformations, so do institutions live and die, or they change. The Warburg Library was part of pattern of the establishment of independent research institutions by German Scholars, archaeological institutes and schools, libraries in Rome and Florence. These foundings provided the pattern not only for Warburg, but also for Berenson’s I Tatti in Settignano. These institutions, if they are to survive, often transform beyond recognition.  Similarly, the Warburg Institute in London today is not Warburg’s ‚Kulturwissenschaftliche Bibliothek’ of the 1920s in Hamburg. The ‚Warburg mission’ of the London Warburg Institute – the survival of the classical tradition (Nachleben der Antike) is something quite different from the vision of Warburg held by the re-born Warburg Haus in Hamburg, and in Germany at large (http://www.phil-hum-ren.uni-muenchen.de/W4RF/YaBB.pl?num=1273043425/0#0 ).

P O S T S C R I P T   (19.11.2014):

THE GUARDIAN  (Leitartikel vom 10. August 2014, mit 44 Kommentaren):

http://www.theguardian.com/commentisfree/2014/aug/10/guardian-view-university-london-warburg-institute

THE GUARDIAN  (Maev Kennedy, “Academics fear for Warburg Institute's London library, saved from the Nazis 'Jewel in University of London's humanities crown' faces court review of status and protesters say it is at risk of being broken up”, 10. August 2014):
http://www.theguardian.com/education/2014/aug/10/academics-warburg-institute-university-london-court-saved-nazis

FAZ, 12.08. 2014:  Gina Thomas, „Wer leert den Giftkelch? Londoner Warburg-Institut kämpft um Unabhängigkeit“, Frankfurter Allgemeine Zeitung, Nr. 185, 12. August 2014, S. 11 („Gelehrte in aller Welt warten auf ein Gerichtsurteil, das die Zukunft des Londoner Warburg-Instituts bestimmen wird. Die 1933 aus Hamburg vor dem Hitler-Regime gerettete kulturwissenschaftliche Bibliothek, die den Kern der Forschungsstelle bildet, wurde 1944 Teil der Londoner Universität. In der Stiftungsurkunde erkannte die Universität damals den besonderen Charakter und internationalen Ruf des Instituts an, das sich nach den eigenwilligen Vorstellungen seines Gründers, des Hamburger Bankierssohns Aby Warburg, der interdisziplinären Erforschung des Nachlebens der Antike widmet. Die Universität verpflichtete (...).
In seinem zähen Kampf gegen die Aushöhlung seiner Selbständigkeit mahnt das Warburg-Institut an, die Universität verstoße gegen die Stiftungsurkunde. Die Universität will die Satzungen ändern – angeblich, um die Zukunft des Instituts zu sichern. Da keine Einigkeit erzielt werden konnte, verwies der Generalstaatsanwalt, der in Großbritannien die Interessen von Stiftungsbegünstigten wahrt, den Fall an das Oberste Gericht. Nach zehntägiger Anhörung muss es sein Urteil fällen, das für Mitte September erwartet wird.“).  Nicht online.

ANTHONY GRAFTON / JEFFREY HAMBURGER, „Save the Warburg Library!“, 1. September 2010, in: New York Review of Books (NYRblog): http://www.nybooks.com/blogs/nyrblog/2010/sep/01/save-the-warburg-library/

PETITION („Save the Warburg Institute!“): http://www.change.org/p/petition-save-the-warburg-institute

AUSSCHREIBUNG für die Stelle des neuen Direktors des Institutes:  http://www.saxbam.com/appointment-details/236-director

FURTHER STATEMENTS:

THE:  Battle for the Warburg
25 October 2014, by Chris Cobb

http://www.timeshighereducation.co.uk/comment/opinion/blog-battle-for-the-warburg/2016563.article

With a court judgment imminent, Chris Cobb reflects on the legal tussle over the
future of the institute

When I joined the University of London, a little over three years ago, I remember colleagues being slightly coy about discussing the Warburg Institute. The refrain was “Don’t Mention the War…burg”. It appeared that they wanted to delay inducting me to the absurdity of the situation.

An important and intrinsic institute of the university had effectively taken the university to court because it disagreed with the way its costs had been attributed.

The University of London has many anachronisms but this one had to beat them all.

While the origins of the case were in budget apportionment, the dispute had developed and expanded and was now considering ownership of assets between the university and the institute. How? Well the institute has its own 1944 trust deed that appointed the university as trustee.

By design then, the university’s trustees are trustees of both the Warburg trust and the university’s own charitable objects. The legal process consequently placed the trustees in the ridiculous position of challenging themselves to court, one charity pitted against the other, the premise being that the Warburg’s interests should be given precedence over the university’s other responsibilities (which include approximately 100 other trusts).

For over 70 years the relationship had been harmonious. The institute’s library grew five-fold in size and was re-housed in purpose-built premises. Research and reputation went from strength to strength. However, external funding declined and belt tightening became necessary.

The university adopted sector best practice to apportion costs more transparently and introduced service charges related to volumes of staffing and space.

Unfortunately, this had a disproportionate impact on the Warburg, whose unique classification system and open-stack configuration was space hungry.

The institute, however, felt that its funding should be preserved and differentiated from the university’s other activities, referring back to the 1944 trust deed.

The language used in the deed is equivocal, particularly when viewed through a 21st century lens. Acrimony ensued. Letters were exchanged. Supporters were recruited. Sides became entrenched.

Then there was a change of cast members, with new leadership on both sides. This heralded a thawing of relations, helped by increased subsidisation from the university.

But it was too late to stop the legal process. The university’s stewardship of the Warburg trust deed had been referred to the Charity Commission, the Charity Commission referred it to the Attorney General and the Attorney General brought proceedings to clarify the situation and asked the university to act as the claimant.

The outcome of the court case is now imminent. What is already known is that there will be no winners or losers. Legal fees have been eye watering, diverting valuable resources that could otherwise have been used to fund research and teaching. The irony is that the legal fees dwarf the budget savings that the Warburg were originally asked to find.

Following the court’s ruling, my expectation is that there will be no obvious change in the day to day management of the Warburg except to end the planning blight and the distraction that the court case has created.

Among other things the court will determine who owns the additions to the library since the 1944 transfer and who owns the extremely valuable (publicly funded) building in which the library is housed. Both questions are paradoxical as the university has never suggested breaking up or merging the collection or moving it from its premises.

Contrary to some headlines, so long as the university remains the Warburg’s trustee (as its originators intended), the institute’s future is not in doubt nor is its fate going to be determined by the court. Despite this, a petition has been set up (and signed by 22,000 people) against a change that hasn’t even been mooted.

If the concern of the 22,000 Warburg petitioners is as strong as the university’s desire to ensure the institute’s financial sustainability in London then we can all be confident that it has a bright future. Indeed, as I write, the university has commissioned an international search for a new director who will work to ensure that the Warburg Institute is restored to its rightful position as one of the world’s preeminent centres for humanities research.

Author:

Chris Cobb is pro vice-chancellor and chief operating officer of the University of London (see ‘Chris Cobb’ at WIKIPEDIA)

MargaretMcGowan, Chairman, Advisory Council of the Warburg Institute (to The American Friends of the Warburg):

6 November 2014

Dear friend,
I am writing to you in my capacity as Chairman of the Advisory Council of the Warburg Institute. As you know, the University of London is the trustee of the Warburg Institute, and holds it on charitable trust pursuant to the terms of a 1944 Trust Deed. We have been waiting for clarification from the High Court of what the trust comprises and what the obligations of the University of London are, and whether its conduct is and has been in accordance with the provisions of the Trust Deed. The High Court issued its judgment this morning and, in view of the public support you have given to the Institute, we thought that you would want to learn of the outcome of the case. With this in mind, a press release on the content of the judgement is attached for your information. The Advisory Council of the Warburg Institute is very grateful for the immense support it has received and continues to receive in regard to the case. We hope that the judgment will provide us with the opportunity to secure its long-term future.
With best wishes,
Professor Margaret McGowan

Chairman of the Advisory Council of the Warburg Institute (at: https://www.change.org/p/petition-save-the-warburg-institute/u/8660989 )