There is no autonomous field of law that can properly be characterised as 'art law' because the term and domain are wide and all-encompassing. Therefore there is no such thing as a typical arts dispute. Although an artwork may be implicated in a dispute, the claim itself is usually related to issues of social status, property ownership, history and reputation, or culture. In the same way that sports law has been said either not to exist because it is more aptly an amalgamation of other laws, or that it does not stand on its own because it is influenced by other fields of law, (1) art law is a nebulous and polymorphous creature that is not stand-alone but is dependent on the evolution of different laws, and concepts that are invariably interrelated. This is a major part of the problem in attempting to find a singular forum for the resolution of arts disputes. Also, art can and does easily cross physical boundaries. This results in a discrepancy of legal treatment and classification depending on which jurisdiction the artwork is in or becomes located. (2)
This article discusses the viability of arbitration to resolve specific types of arts disputes, being title and authenticity claims. It then considers the available institutions with claimed expertise to administer such disputes. In particular, the Court of Arbitration for Art ('CAfA') will be considered and its key provisions will be explained. The CAfA is a specialised institution that was established in 2018 to address a perceived gap in the arbitral institutional framework for providers of expert-led solutions for disputants in the artistic and creative industries.
2. AUTHENTICATION CLAIMS
As it was partly the brainchild of the Authentication in Art Foundation 'AiAF') which cofounded it, the CAfA was likely initially created with authentication disputes specifically in mind. Its remit was soon thereafter expanded to include all types of art disputes. The nature of authentication disputes is that they are very technical and will invariably lead to the judge(s) relying heavily on the opinion of an expert--or more than one--who has devoted many years of study to the artist in question, to determine whether a work is a fake or a forgery.
The first potential motivator for creating a specialised forum for the resolution of arts disputes is that manipulations and forgeries are becoming more and more sophisticated, and it requires a fine eye and understanding of the historical context to filter the frauds from the real deal. If the CAfA can recommend to tribunals a pool of genuine and credible experts in authentication thanks to its network and expertise, it will allow those tribunals to arrive at a more reliable decision on what is acknowledged to be a very challenging and expertise-led area of law.
The second is related to the first: there is usually only a handful of authenticators in the world who are trusted by those in the art market and they are diminishing because they are concerned about the legal implications if they are...
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