STEPHANIE ROSNER—On January 1, 2019, the Court of Arbitration for Art (CAfA) began accepting art-related disputes for review. This step marks the latest development in the formation of the long-anticipated art law tribunal, which formally launched on June 7, 2018 during the Authentication in Art 2018 Congress. Although the CAfA is based in the Hague, the tribunal will conduct proceedings anywhere in the world to address art-related conflicts such as authenticity, contract, chain of title disputes, and copyright claims.
Today, the CAfA is a joint operation between the Netherlands Arbitration Institution and Authentication in Art, a non-profit group. However, the tribunal was first envisioned by William Charron, an Advisory Board member of Authentication in Art and Co-Chair of the Art Law practice at Pryor Cashman in New York, to address the problematic experiences faced by courts and juries in deciding art law cases, which frequently implicate specialized matters of forensic science, provenance research, and connoisseurship.
Although the formation of CAfA has called attention to the difficulties of trying art law related disputes in traditional courts, the issue is by no means novel. In 1903, Justice Oliver Wendell Holmes, Jr. famously discussed the importance of aesthetic non-discrimination in United States Copyright Law in Bleistein v. Donaldson Lithographing Co, where he stated, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” Holmes further explained that placing an individual who lacks an understanding of art in a position to judge the values and tastes of others would negate the importance of commercial value.
Despite Holmes’ cautionary warning, courts have continued to rule on sensitive factual inquiries in art law disputes that would be better served by art connoisseurs. This complex situation has not only affected the individual parties in each suit, but also prompted disruptions in the art market at large. Judicial intervention is particularly concerning in authentication disputes, as the art market rarely adheres to judges’ verdicts. This problem is illustrated by the 1993 case Greenberg Gallery, Inc. v. Bauman, where the art market followed a recognized expert’s determination that a sculpture was a fake, despite the judge’s ruling that the work was authentic. Greenberg concerned the authenticity of “Rio Nero,” a mobile allegedly created by Alexander Calder. Despite recognized expert Klaus Perls’ assertion that the work was a copy, the D.C. District Court judge ruled that “Rio Nero” was an authentic Calder. Even at the time of his decision, the judge understood that his ruling would make “Rio Nero” unsellable. He explained, “This is not the market, however, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence.” Now, over twenty years after the court declared that “Rio Nero” was not a forgery, the work remains unsold. Greenberg demonstrates experts’ immense influence over the market, regardless of a judge’s official ruling on a work’s authenticity.
Now, the CAfA hopes to remedy the inconsistency between the courts and the market by establishing a neutral and informed tribunal. According to Charron, the establishment of CAfA was spurred by a desire “to help both parties and the market accept the results” of their disputes. Rather than utilize a court system whose findings are frequently ignored by the market, Charron explained that CAfA would “flatten the learning curve” by selecting experienced art lawyers to be the decision makers. In Charron’s opinion, these practitioners will be more capable of understanding and properly evaluating the evidence in dispute, so that their ultimate findings will be better received and accepted by the market.
Moreover, CAfA will eliminate conflicts between competing experts and the inherent partisanship that exists when each side is allowed to recruit its own experts, an issue that is almost always present in art law disputes of significant magnitude. Indeed, the tribunal will appoint scientific and provenance experts from a pool managed by the Netherlands Arbitration Institution. Additionally, the CAfA proceedings will be conducted privately. While the tribunal’s final decision will be revealed publicly, including the identity of the work under consideration, the names of the parties involved will remain undisclosed. This procedure respects people in the art world’s desire for anonymity, while ensuring verdicts will be respected by the market.
By transforming how art-related conflicts are evaluated, and replacing the judicial decisionmaker with an informed practitioner, CAfA is set to revolutionize the way art disputes are resolved. If CAfA performs as expected by Charron and others who contributed to its formation, it will not only enhance the accuracy of resulting decisions, but also increase the likelihood that the market will accept and adhere to final verdicts.
