Judicial Incompetence in Art Disputes

The Art Market is Searching for Answers

By MICHAEL MCCULLOUGH          May 14, 2018

There is a theory in the art market which has not been fully formulated, but which is largely accepted and is brought forward to criticize any judicial decision involving a work of art. It might be called, until a better name is found, the Theory of Judicial Incompetence in Art Disputes. According to this theory, judges and juries are too thoughtless to understand the complexities of the art market, and the authenticity of an artwork can only be fully comprehended by an art expert in his or her native environment, meaning anywhere outside of a courtroom.

At present this theory is being used to promote a new set of arbitration guidelines, called the “NAI Adjunct Arbitration Rules,” created by the Netherlands Arbitration Institute (NAI) and The Hague-based Authentication in Art (AiA). The NAI has been conducting arbitration for over six decades and has developed the NAI Arbitration Rules to suit a broad range of commercial disputes. The AiA is an independent nonprofit organization founded in December 2012 and consists of a group of international art world professionals. These Adjunct Arbitration Rules (AAR) supplement the primary NAI Arbitration Rules specifically for disputes in the international art market.

The AAR apply wherever the parties to an art market dispute agree to submit their dispute to resolution by arbitration in accordance with the AAR. This is usually done in the purchase agreement or in an auctioneer’s terms of sale but could be in an agreement after a dispute arises. To be clear, the AAR can apply to any art market dispute: authenticity, ownership, other contact claims, etc. However, the rules were first formulated to deal with authenticity disputes and seem better suited for this type of claim.

The AAR creates an “Arbitrator Pool” and an “Expert Pool” to decide disputes. The Arbitrator Pool is a group of arbitrators composed primarily of international lawyers with experience in litigating or counseling clients in art law disputes. The Expert Pool is composed of specialists qualified to address authenticity issues and includes international materials analysts, forensic scientists, art historians, and provenance researchers. The authenticity of artwork is typically evaluated according to standards of connoisseurship, provenance, and forensic science. While relevant scholars of an artist must be approached on a case-by-case basis, experts in the fields of provenance and forensic science can analyze objects of art more generally. As an alternative to having disputing parties retain their own respective experts in these fields, with such experts then advocating for their side, the AAR offers the Expert Pool to provide the exclusive analysis and testimony on these subjects. The parties may retain their own consulting experts to assist in their work with, and examinations or cross-examinations of, the chosen experts from the Expert Pool.

For artwork valued at or above € 500,000, the arbitration proceedings are conducted before a three-arbitrator panel. For objects of art valued below € 500,000, the parties conduct their arbitration proceedings before a sole arbitrator. In the case of a sole arbitrator, the parties must agree upon the appointment of an arbitrator from the Arbitrator Pool. If the parties are unable to agree, then the NAI appoints the arbitrator pursuant to the procedure in the NAI Rules. In the case of appointment of a three-member arbitrator panel, each party selects one arbitrator from the Arbitrator Pool and those two selected arbitrators jointly agree upon the selection of a third.

The AAR provides that the only admissible expert evidence in an authenticity dispute regarding issues of forensic science or the provenance of an artwork must be from an expert or experts chosen from the Expert Pool. All other expert witness evidence may come from any party-appointed experts.

A unique aspect of the AAR is the appointment of a “technical process advisor” to assist the arbitrator(s) in identifying and the gathering of relevant evidence in an efficient and cost-effective manner. The advisor acts under the authority and direction of the arbitrator(s), but may, if requested, draft proposed procedural orders for adoption by the arbitrator(s). The advisor does not attend the hearing on the merits or participate in the deliberations. However, the arbitrator(s) may wish to have the advisor present at hearings on procedural matters of an evidentiary nature to facilitate obtaining the advisor’s advice on such issues.

If the parties have not agreed to a governing law in their contract, the AAR provides that an appropriate choice of law for arbitration will be the law of the principal location of the seller, if known at the time of the transaction, in the case of a sale transaction. In matters other than a sale, an appropriate choice is the law of the principal location of the owner of the art object in question at the time of commencement of the arbitration. Under the NAI Arbitration Rules, the arbitrator(s) is to base its decisions on the rules of law, while respecting any applicable art industry trade usages. Should the parties prefer instead that the arbitrator(s) not be bound by such law, the parties must so authorize the arbitrator(s) in accordance with the NAI Arbitration Rules.

It is common for a plaintiff in an art dispute to bring a claim many year or even decades after the acquisition, particularly in the context of title claims. The AAR confirms that prescriptive periods and similar time-bar principles are intended to be respected where the party raising a claim or defense has no justification for its failure to timely advance its case. The purpose is to protect the other party from “stale” claims or defenses which were not pursued with reasonable diligence and other situations of undue prejudice, such as where evidence has been lost due to the long passage of time.

Under the NAI Arbitration Rules, a party may ask the arbitrator(s) to rectify a manifest error in an award with two months of the date of the award. However, there is no right to appeal the arbitrator(s) decision to any other body or tribunal.

Since the place of arbitration is in the Netherlands and the Netherlands is a signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), an award can be enforced in the many countries and other territories that are signatories to the convention or similar treaties with the Netherlands. A party seeking to enforce a final award, may follow the statutes, rules or regulations of the signatory country in which enforcement is sought.

My view is that the New York courts are very capable of handling art market disputes. I would prefer to be in a state or federal court in New York with an ownership dispute and I don’t think that arbitration under the AAR would provide a better result. In fact, I’m uncomfortable with the AAR rule cited above on statute of limitation; I would have expected a much more robust discussion of this complex area of the law.  While I have had much success is settling authenticity disputes without having to use the courts, when forced to file suit my cases have settled very quickly. However, other lawyers have had authenticity disputes linger in the courts for years with costly results, and the AAR could offer a better forum for those types of cases.

Time and Tide Make Us Mercenaries All

Does Stolen Property Ruin Everything?

By MICHAEL MCCULLOUGH          January 10, 2018

It is easy enough for me to say that theft continues to be a problem for those who buy and sell artwork. One might question the art market’s historical indifference to the victims of theft, but the more useful question would be, Is there a better way to prevent the trade in stolen artwork?

New York law on the topic is both established and chaotic. I choose an exemplary quotation from a legal brief filed by the New York District Attorney’s Office, or “DANY” for short, in a recent case:

“New York law prevents a purchaser of any kind from acquiring good title from a thief…. a good faith purchaser of an artwork has the burden of proving that the work was not stolen.”

That is, by and large, a good summary of the law, though it is by no means an exhaustive one.

In October of last year, DANY obtained a search warrant to seize a Persian Limestone Relief that once resided in Persepolis, an ancient city that was the ceremonial capital of the Achaemenid Empire, currently situated in Iran. Leaving aside any tentative judgments about New York State protecting the property interests of the Iranian Government, the warrant was based upon criminal laws that allow a court to hold property thought to be stolen until a criminal case is filed against a person related to the theft. Oddly, DANY alleged no improper conduct against the owners of the Relief and no criminal charges were expected to be brought against anyone connected to the Relief. Why, then, was the artwork seized?

The simple facts of the case are these. The Relief was donated to the Montreal Museum of Fine Art in 1951 and was on display there until it was stolen from the museum in September 2011. The Relief was insured by AXA and the museum was paid for its loss. The Royal Canadian Mounted Police recovered the Relief in Edmonton, Canada- a location not well known for the harboring of stolen artwork- and eventually returned it to the museum in January 2014. Thereafter, AXA took possession of the Relief, as it was then the owner after having paid the insurance claim, and sold it to Rupert Wace Ancient Art in London, England. Wace then sold a half interest in the sculpture to Sam Fogg. In October 2017, Wace shipped the Relief from London to New York for display at the TEFAF NY art fair. Federal law required Wace to obtain a license from the U.S. Office of Foreign Assets Control because of the US trade embargo against Iran, subject to exception for fine art, which he did obtain.

On October 27, 2017, Matthew Bogdanos of DANY visited the TEFAF NY fair with a warrant and three agents to seize the Relief because it was allegedly stolen from Persepolis in the mid-1930’s and was to be returned to Iran. True, an eighty-year-old theft sounds like a cold case, but the stolen property laws, in the first instance, don’t discriminate against old thefts. Think of the Nazi-looting between 1933-1945 and the legitimate need for claimants to retrieve their property despite the passage of time.

And New York law would have no problem with the Government of Iran bringing a lawsuit in the New York courts to recover its property. The question here was whether DANY could use the criminal laws to seize the Relief and return it to Iran. The owners of the Relief thought not. AXA, Wace, and Fogg filed papers with the court arguing that, absent the filing of criminal charges, the court should retain possession of the Relief until the question of its ownership could be resolved in a civil lawsuit that AXA had filed in Montreal days after the seizure.

Not surprising, the judge agreed with the owners. Judge Jackson said that the court had no power to allow DANY to return the Relief to Iran because there was no criminal prosecution of the owners. In consequence of this, DANY was ordered to retain custody of the Relief pending a determination its rightful ownership in the Montreal court, in which AXA is arguing, among other things, there is no proof that the Relief was stolen from Iran.

Going forward, DANY cannot seize and forfeit allegedly stolen artwork in the absence of a criminal prosecution, a ruling that invites future declaratory judgment title actions against foreign governments where the is no criminal intent of the current owners.

My firm made similar arguments in another case brought last year against DANY regarding the seizure of a Marble Archaic Bull’s Head that was allegedly stolen from Government of Lebanon. The Bull’s Head was purchased by our clients, William and Lynda Beierwaltes from Robyn Symes in 1996. Michael Steinhardt purchased the Bull’s Head from the Beierwalteses in 2010 and, shortly thereafter, loaned it to the Metropolitan Museum of Art. Here, one would expect a similar outcome to the Relief, but for the fact that DANY alleged that the Beierwalteses were in the business of buying and selling antiquities, an important allegation because New York law creates a presumption that people in the business of buying, selling, or dealing in property can be charged with criminal possession of stolen property “if [he or she] obtained it without having ascertained by reasonable inquiry that the person from whom he [or she] obtained it had a legal right to possess it.” This charge was leveled against the Beierwalteses because their bankruptcy attorney- in an obscure 2014 bankruptcy disclosure statement- said that the Beierwalteses “primary business for much of their adult lives has been the acquisition, management and sale of an extremely extensive and valuable body of art works … [in] … a category of art known as antiquities.” Deterred, the Beierwalteses dropped their claim to the Bull’s Head.

This criminal presumption means that anyone in the business of buying and selling artwork can be charged with a crime and their artwork can be seized and forfeited, if they did not make a “reasonable inquiry” of the seller’s lawful ownership of the object. In New York, at least, a person in the art business is required to make a reasonable inquiry into the ownership history of the artwork being acquired. While the law does not define “reasonable inquiry” and New York courts haven’t addressed the definition in the context of the sale of artwork, courts have done so in other fields: business owners have failed to make a reasonable inquiry by acquiring goods under suspicious circumstances, by failing to inquire as to the ownership of the property being purchased, and by failing to create internal documentation of the purchases.

I revert to my original question to say that while the duty to inquiry about the ownership of an artwork is a sensible one, some thought should be given to what amounts to a reasonable response. Put another way, there are various degrees in quality of information and sources in the international art market; we should be working to create a regulatory scheme to establish what is reasonable and what is not. Even more important is the need to provide art buyers and sellers a platform to vet undocumented artwork. An owner’s publication of an undocumented artwork in a public database should gain the owner some repose against claims after a sufficient period of public reflection, say seven years or so. Such publication should also remedy the owner’s failure to make a reasonable inquiry at the time of acquisition. Otherwise, there is great incentive for us to all become mercenaries without any regard to the loss of money, livelihood, and freedom of those who buy and sell artwork for a living.

As They Please

Impending Regulations Will Destroy the Decorative Arts Trade

By MICHAEL MCCULLOUGH          March 25, 2014

A certain amount of information about the meeting of the Advisory Council on Wildlife Trafficking on March 20th has been passed on to me by members of the art trade who were in attendance.

It’s clear that the Council has no authority to make policy and is merely advising the Obama administration on policy options. However, it’s equally clear that the Council represents the will of a small group of wildlife organizations. Federal advisory bodies are usually dominated by interest groups that are able to place their members on the committee, which for these groups means that the government receives good information on the “true preferences” of private interests. Only in Washington can the interests of a narrowly focused group be considered an accurate reflection of the nation’s needs. The fact is that the Council contains no member with knowledge of the arts and antiques market, and, as a result, cannot offer any real advice to the White House on dealing with the issue of antiques. An example of this is the Council’s recommendation to the administration that it should start a public campaign to decrease public demand for goods made from endangered species: the Council’s discussion of the “demand” for ivory could articulate no sophisticated distinction between bona fide antiques containing ivory and tourist trade materials. In consequence of this, the “ivory problem” will remain a ripe target for a total ban on the sale of objects containing the material.

In a letter sent to Director Ashe of the U.S. Fish and Wildlife Service on March 7th, the Art and Antique Dealers League of America (“AADLA”) and the National Antique and Art Dealers Association of America (“NAADAA”) proposed the creation of an art advisory panel to assist the Fish and Wildlife Service in assessing whether objects being imported, exported or sold in interstate commerce are antiques. The implementation of an advisory panel would provide an effective solution to a problem viewed by the Council and the Administration as complex; it would encourage transparency, promote the lawful trade of ESA-permitted objects, and discourage the black market in unpermitted objects.
These two dealer groups were represented at the meeting last week by Clinton Howell, the President of the AADLA and a member of NAADAA. Mr. Howell provided the Council with strong critique of the administration’s recent actions, especially of Director Ashe’s “Order No. 210” that places severe restriction on the ability of dealers and auctioneers to sell antiques containing endangered species. Mr. Howell also distributed an excellent survey of the use of ivory in antiques, entitled “Ivory and Its Widespread Use in Cultural Artifacts,” done by the British Antique Dealers’ Association. Mr. Howell other materials included a report on the use of ivory in jewelry and a fact-sheet on the illegal ivory trade.

While the meeting contained a discussion about Senator Feinstein and Representative Garamendi of California developing legislation that could ban all ivory sales in the US, the immediate concern for the art and antiques trade remains the ominous restrictions in Order No. 210. Legislation could take months if not years to complete, but the Fish and Wildlife Service has already begun to impose new restrictions on the import and export of objects containing endangered species, and will likely begin enforcement of the new rules on the interstate trade within 60-90 days. These new regulations will destroy many small businesses long before a vote is taken in Congress.

Suite for the Sweet

Artist Resale Rights in the United States

By MICHAEL MCCULLOUGH          February 19, 2014

Whenever I read about efforts to legislate an “artist resale royalty” in the United States, there comes back into my mind the memory of a conversation I had about ten years ago when the British Parliament was debating the implementation of the EC Directive on artist resale rights.

I was interviewed by an aide to a British MP who was writing a report on the likely effect of the artist resale right upon the British art market. The artist resale right was adopted by the European Parliament in September 2001, and those countries like the UK that did not already have a resale right at that time were required to put one in place in 2006. The Brits were one of the last in Europe to adopt the right; the artist resale right was first introduced to Europe by France in the 1920’s (for auction sales only) – which is why it is often referred to by the French term “droit de suite”.

My interview focused on the competitive disadvantage brought about by the artist resale right to those British auctioneers who competed with auctioneers in the United States for consignments. It was my opinion at the time that the resale royalty put auctioneers in Europe at a competitive disadvantage to auctioneers in countries without the royalty. This is especially true at the high end of the art market where a seller can choose a sale venue in one of several different countries around the globe. I still believe this to be true, but I don’t think the royalty’s effect on the market is so great as to make it punitive; by way of example, the maximum payment under the UK law is €12,500, a miniscule amount in light of today’s nine-figure sale prices. In consequence of this, I don’t believe an artist should be denied the right to share in the financial gains upon the later resale of an artwork. I do, however, believe that-for very different reasons- there will not be an artist resale royalty in the United States anytime soon.

One of the founding principles of American jurisprudence is the idea that private property can never be taken by the government without just compensation. This is the concept of “what’s mine is mine and what’s yours is yours,” and Americans prefer things organize in this clear and tidy manner. In other countries, artwork and other types of personal property can be taken away by the government without any compensation; in other words, “what’s yours is mine.” Americans don’t care much for others coveting their wares; envy and jealousy are fine, but no coveting.

In light of this principle, the artist resale royalty looks very much like a version of “what’s yours is mine.” Most visual artists retain the copyright to their artwork, so they are free to exploit their images commercially should they choose to do so. And an artist can, and many do, create images in series or multiples, so that a single image or concept can be exploited over and over again. Many who favor the artist resale right point to the ability of authors and composers to be remunerated for the reproduction or performance of their work, and the artist resale right is intended to create a parallel benefit. This comparison breaks down very quickly when you realize that in the artist example no additional instance of the original artwork is brought to the market; the correct analogy would be if Salmon Rushdie could claim some further payment for every copy of Midnight’s Children resold in a used bookstore above the $13 price at which it was originally published in 1981. No such right exists today for the author or composer. In fact, what is being proposed in the artist resale royalty is a new right that is not really a royalty at all- it’s more like a profit share- and fits awkwardly with existing concepts of property and ownership. As I said earlier, such a right seems like a good idea at first blush, as most things do, but to justify the right upon the comparison of payments to authors and composers is dubious.

The strongest argument against the resale royalty is also the most fundamental; it simply doesn’t work. The high end of the global contemporary art market is driven by the sale of artworks done by about a thousand artists. The other million-and-a-half artists who worked at some point in the past seventy years are excluded from the revelry. The same is true for the visual artists of the Impressionist and Modern eras. If you don’t believe me then visit any regional auctioneer to view their auctions and you will find that many very good paintings and sculptures can be purchased for under $1000. Most of the artwork created over the past century, when adjusted for inflation, has not appreciated in value at all, so the concept of helping the poor, starving artist is little more than a fiction. The experience in Europe is that the vast majority of artist resale royalties are paid to artists or the families of deceased artists who are financially secure. The fact is that successful artists, just like successful authors or composers, are rewarded commercially; if you compare the art-derived income of creative individuals of equal seriousness and achievement across creative platforms, then you will find that visual artist do very well. Compare Damian Hirst in relation to Cormac McCarthy and Thomas Ades; Marina Abramovic to Joyce Carol Oates or Jennifer Higdon; or pick your own comparison. If you do it fairly, you will find that visual artists usually fare better than their peers who work on royalties.

Creating an artist resale royalty in the United States would also tarnish the attractiveness of art as an investment, thereby decreasing the pool of funds available to purchase artwork. Any legislation aimed at helping struggling artists should address the need for an initial market for their work, as today’s artist struggles for access but manages quite well once the market accepts them. A good way to help artists would be to give collectors incentives to buy more artwork- to abolish the sales tax on purchases of artwork below $5000 or to defer capital gains on artwork that is sold to purchase more artwork. Like it or not, the free market works very well for many artists and the goal should be to keep it that way.

Success in the Machine

Good Artwork Always Sells at the Right Price.

by MICHAEL MCCULLOUGH          November 6, 2013

A dozen years ago anyone who foretold the size and importance of today’s global auction market would have been looked on as a lunatic. And yet the truth is that the present market ought to have been predictable even during the Great Recession. Something like it was bound to happen as soon as the financial benefits of globalization started to kick in.

Of course, much of the success of the auction market rests upon the mechanics of the auction process itself. Take, for example, how auction estimates are set: every auctioneer will tell you that low estimates bring high prices. This sounds counter-intuitive, but it’s a fact that competitive bidding is never as robust as when the bidding starts at a relatively low level and works up toward the object’s market value. In consequence of this, auctioneers will always advise a seller to accept estimates lower than his or her expected return on an object in the hope that the bidding goes above the high estimate (auction estimates are always a range, such as $5,000-$10,000, with the former being the low estimate and the latter being the high estimate).

The dilemma for the seller is that the “reserve price,” the confidential price at which the auctioneer will sell the object, cannot exceed the low estimate (at least in honest auctions), so the seller takes the risk of the object selling to a single bidder at the reserve price in the absence of competitive bidding. A seller who wants the certainty of obtaining a high price will insist on higher estimates, and many of these lots fail to sell because bidders are reluctant to start bidding competitively at a high level. This week at Christie’s, Modigliani’s “Monsieur Baranowski” failed to sell because the estimates were set too high. The picture, estimated at $25–$35 million, would have had a much better chance of selling at the $25 million mark had the estimates been set lower at $20-$25 million, or at least would have sold within those estimates. In contradistinction, Kandinsky’s “Schwarz und Violett,” that had been estimated conservatively at $4.5 million to $7.5 million, sold for $12.5 million, still a good buy. All of this is to say that competitive bidding is as much an exercise in psychology as it is in economics.

Traditionally, about a third of the objects offered at the major auction houses do not find a buyer. Of those that do sell, about half sell within the estimates and half sell above the high estimate. This means that global auctioneers have a .667 success rate, which is also an outstanding batting average in the major leagues. It also means that the auction houses are very good at convincing their clients to accept reasonable estimates.

So, why is this important? Because auction houses make their money from charging the buyer’s premium, which is a percentage of the sale price of an object, calculated on a sliding scale that averages about 20%. While they also charge the seller a commission, referred to as the “vendor’s commission,” it’s usually negotiated away by sellers of high-priced objects and only ranges between 6-10% for lower priced objects. But the buyer’s premium is sacrosanct, never waived and is where most of an auction house’s revenue is gained. As a matter of fact, the major auction houses make no profit from the vendor’s commission at all, as it just pays for the lights. All of the year’s profits are made from collecting the buyer’s premium, a majority of which comes from only five collecting categories: Impressionist and Modern, Post-War and Contemporary, Old Master Paintings, Jewelry and Special Collections (single-owner sales such as Jacqueline Kennedy-Onassis or Liz Taylor).

All of this is why the “White Glove” sale, where 100% of the lots are sold in an auction, is so coveted among auctioneers. It means that the most profit possible was achieved from the sale, and results in the popping of champagne corks and cartwheels in the street…..literally.

Note: An earlier version of this article appeared on Gallery Intell.