Art disputes are, by their nature, very specific. They are highly technical and require a considerable amount of expertise from the decision-makers, lawyers, and the experts involved. They can also be subject to the uncompromising scrutiny of art market players and therefore, non-legal matters.[1]
Art disputes encompass a wide range of issues, such as:[2]
- Disputes related to the authenticity of artworks (sales of fake or forged art pieces);
- Claims for the return of national treasures and cultural objects;
- Copyright infringement disputes;
- Chain of title disputes (uncertainty about ownership of an art object when multiple transfers have occurred);
- Disputes about artists’ resale rights;
- Disputes about loan, deposit, and insurance agreements for artworks (when individuals or museums loan an artwork to other museums);
- Claims related to the sale or donation of art objects;
- Disputes related to the sale of digital artwork such as non-fungible tokens (NFTs), among others;
- Disputes related to the misappropriation of traditional cultural expressions.
Although art disputes have so far mostly been resolved before national courts, arbitration proceedings are on the rise in the art sector as this special industry requires particular expertise.
The Arbitral Institutions That Resolve Art Disputes
The World Intellectual Property Office (WIPO) Alternative Dispute Resolution for Art and Cultural Heritage service, located in Geneva, provides dispute resolution advice and case administration services to support parties in resolving art disputes. However, the WIPO does not disclose information about the number of art disputes being administrated and hopefully resolved.[3] It gives examples of a WIPO Expedited Arbitration relating to an artistic production finance agreement, a WIPO Arbitration of an artist promotion dispute and the WIPO Center carrying out its “good offices” (i.e., attempting to facilitate dialogue) in a dispute between a museum and a local community regarding the return of a cultural object.
Aside from the WIPO, there are the usual arbitration institutions, such as the ICC, CAM, and the LCIA available to oversee art disputes. Moreover, some institutions provide panels of arbitrators specialized in Intellectual Property disputes, but not in art disputes, such as the HKIAC.[4] It is worth noting that it is possible to resolve art disputes through ad hoc arbitration proceeding too.[5] However, these arbitration bodies do not have a particular art-sector expertise and, arguably, few “art expert” arbitrators on their respective rosters.[6]
The Emergence of a New, Specialised Institution for Art Disputes
More recently, the creation of the Court of Arbitration for Art (CAfA) in 2018, located in the Netherlands, is part of the global trend of creating specialized arbitral institutions, such as the Court of Arbitration for Sport (CAS). This specialized arbitral institution provides arbitration rules specifically designed for art disputes. The focus is on interdisciplinary solutions for which a pool of specialized arbitrators, mediators and experts is being built. These individuals will not exclusively be lawyers but will also include specialists in the art trade and scientists able to understand non-legal matters intrinsically linked to art disputes.[7]
The CAfA’s arbitration rules provide for confidentiality, as befits an art dispute (Article 6). Arbitrators shall be chosen from among those appropriate individuals listed in the Arbitrator Pool (Article 11(6)). The arbitrators may appoint experts chosen from the Expert Pool (Article 29). Specific examples are given for experts in the rules themselves, for instance experts for issues concerning an art object’s authenticity (Article 29(7)):
In any case where complex and/or highly technical issues have arisen or are expected to arise, such as concerning an art object’s authenticity, the arbitral tribunal may appoint a technical process advisor, where appropriate, from the Expert Pool to advise the arbitral tribunal with respect to pre-hearing evidence gathering and evidence exchange processes.
On-site inspections and viewings appropriate for art disputes are also provided for (Article 30):
The arbitral tribunal may, at the request of any of the parties or of its own motion, examine a local situation or conduct a viewing, within or outside the Netherlands. The arbitral tribunal shall give the parties the opportunity to be present at the on-site examination or viewing.
Specific rules that are appropriate for art disputes are also suggested in order to determine the applicable law, if none has been agreed upon by the parties (Article 42(2)):
An appropriate choice of law for the arbitral tribunal may be the law of the principal location of the seller, if known at the time of the transaction, or, if the principal location of the seller is unknown or cannot be determined or no sale is involved, of the current purported owner of the art object in question at the time of the commencement of the arbitration.
Contrary to the WIPO, whose WIPO Arbitration and Mediation Center was established in 1994, the CAfA has reportedly not administrated art cases so far.[8] Therefore, the CAfA Arbitration Rules and practices are not set in stone and there is space for interpretation. However, the success of this arbitral institution will depend, in part, on the calibre and experience of the experts and arbitrators listed in the Expert and Arbitrator Pools. Be that as it may, it will also require the willingness of market players to rely on CAfA to resolve their art disputes.[9]
The CAfA proposes a standard arbitration clause that can be incorporated directly into contracts or the terms and conditions of sale that will allow its jurisdiction over potential disputes:[10]
All disputes, claims, controversies, and disagreements arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the CAfA Arbitration Rules, consisting of the Arbitration Rules of the Netherlands Arbitration Institute supplemented and modified by the AiA/NAI Adjunct Arbitration Rules.
In summary, art disputes, while highly specific and technically complex, span a wide spectrum of issues from authenticity disputes to copyright infringements, chain of title disputes, and even disputes about digital artworks like non-fungible tokens (NFTs). Traditional methods of dispute resolution often prove insufficient due to the unique nature of the art sector, which calls for expert knowledge and nuanced handling of both legal and non-legal matters. In response to this need, specialized arbitral institutions like the Court of Arbitration for Art have emerged, offering tailored solutions and a panel of experts knowledgeable in the art trade. While still in its early stages, the success of these institutions hinges on the expertise of their panel, as well as the willingness of market players to adopt these new systems of conflict resolution. This signals a promising advancement in managing art disputes, ensuring a more informed, efficient, and sensitive approach to the intricate issues of the art world.
[1] T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, p. 218 and 222.
[2] T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, pp. 219-221.
[3] A. Gauberti, “Art and Arbitration: What Needs To Be Done To Improve The Security Of Art Sales And Transactions”, Kluwer Arbitration Blog, 2019; T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, p. 228.
[4] T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, p. 228.
[5] T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, p. 222.
[6] A. Gauberti, “Art and Arbitration: What Needs To Be Done To Improve The Security Of Art Sales And Transactions”, Kluwer Arbitration Blog, 2019
[7] J. Ole Jensen, “DIS Autumn Conference 2018: Art-Related Dispute Resolution”, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ | German Arbitration Journal (Kluwer Law International; Verlag C.H. Beck oHG 2019, Volume 17, Issue 2), pp. 86 – 92, p. 91.
[8] T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, p. 237.
[9] T. Braulotte, “Art Law Dispute Resolution and the Court of Arbitration for Art”, in Caroline Verbruggen and Maarten Draye (eds), b-Arbitra | Belgian Review of Arbitration (Wolters Kluwer 2022, Volume 2022, Issue 2), pp. 218 – 237, p. 237.
