This blog was posted by Emily Gould on behalf of the author, Alice Trioschi, representative for ADR Art & Cultural Heritage, National and International Arbitral Chamber of Milan
It was reported earlier last month that the Netherlands Arbitration Institute (NAI) and The Hague-based Authentication In Art (AIA) had announced the imminent opening of a new court solely dedicated to art-law disputes: the Court of Arbitration for Art (CAA). The court opened for business on 7th June. It will use arbitration and mediation (often referred to as forms of ‘Alternative Dispute Resolution’ or ‘ADR’) to solve art-related conflicts around the world, dealing with diverse issues such as authentication, provenance and copyright. As explained by William L.Charron, one of CCA’s founders, this is an important step in the art world, the CCA being the first court entirely dedicated to offering efficient and reliable rulings for art-disputes.
The debate about the use of ADR for art & cultural heritage disputes has attracted increasing attention over the past few years due partly to the increase in volume of art law claims and the interest of practitioners in the field. ‘ADR’ is generally used to refer to a variety of private, out-of-court dispute resolution mechanisms, that allow parties to resolve their conflict in a more flexible, time and cost-efficient way, giving them a degree of control over the process and the possibility to select one or several independent mediators, arbitrators or experts. In the field of art, the three main branches of ADR employed are arbitration, mediation and expert determination. The first has a third party, the arbitrator, deciding the dispute. The second sees a mediator facilitating a resolution while the third uses an expert to give an informed opinion about the specific matter submitted by the parties.
These procedures differ greatly, though share some common threads and benefits. Firstly, their flexibility and creativity. They allow the actors to tackle sensitive non-legal issues generally not addressed in court: emotional, moral, political and ethical matters. Secondly, they are based, to a greater or lesser extent, on consensus between the parties and involve an impartial figurehead in the form of a mediator/arbitrator/expert. Thirdly, they provide much greater opportunity than court proceedings for preserving the long-term relationships typical of the art market. Fourthly, their adherence with confidentiality which, in contrast to legal proceedings, enables the parties to protect their reputations. Finally, they can potentially offer opportunities for speedier and less costly resolutions than litigation, providing a more flexible and sensitive forum for actors from different countries and cultural backgrounds.
A number of trade organisations and regulatory bodies within the sector have already introduced the use of ADR in art-law disputes. An example is the WIPO-ICOM Art & Cultural Heritage Mediation project. The World Intellectual Property Organization (WIPO) and the International Council of Museums (ICOM) have created a not-for-profit mediation service based on the published set of WIPO-ICOM rules which make reference to ICOM’s Code of Ethics for Museums. The parties can choose an impartial art-expert mediator from WIPO’s lists. UNESCO also offers to UNESCO Member States a mediation and conciliation service through its Intergovernmental Committee for Promoting the Return of Cultural Property (ICPRCP). In this case, the main focus is the return of looted cultural property to its country of origin or its restitution in case of illicit appropriation.
Similarly, in 2015, the Milan Chamber of Arbitration (CAM) created ADR Arte: a project aimed at solving art disputes through mediation. Between 2015 and 2017, ADR Arte dealt with 32 art mediations involving a broad range of legal categories: from inheritances to banking contracts, from disputes over the distribution of estates to libel. It is interesting to note that when the parties in this case made the choice to continue with the mediation process after the first session, over three quarters then went on to reach a final agreement. Similarly, WIPO’s results also seem to suggest a high rate of success where ADR has been pursued for art disputes.
Other institutions such as the Art-Law Centre of the University of Geneva have undertaken research projects dedicated to ADR in art disputes. The studies funded by the Swiss National Science Foundation (SNSF) started in 2010 and led to the creation of the digital platform ArThemis, a detailed public database of information about art-law dispute resolution, focusing on disputes settled through ADR.
Finally, some private players should be mentioned. The British Art Resolve and Art ADR Global offer private mediation, arbitration and expert determination services devoted to art disputes. In these latter cases, art and law experts will help the parties solve their conflict in the most effective and efficient way.
What does the future hold in the context of art-related disputes? It is hoped that its potential benefits and advantages will become better understood within the art market so that it features more prominently in the considerations and practices of art market players – perhaps to the extent that its ‘alternative’ tag can be dropped for good.