The Court of Arbitration for Art (CAfA)

By Mihaela Tarnovschi

It all started with the Groningen ‘The Plough’ forgeries case, the longest litigated case in art law history. The case involves the forgery and sale of multiple paintings of ‘The Plough’ artists, with proceedings starting and being dropped since 1991.[1] In sum, the case revealed the weaknesses of the justice system when presented with art law issues. The prolonged proceedings were a result of the incompetence of both lawyers and judges when faced with art law matters, a lack of expertise when it comes to identifying authentic paintings from fake ones and a lack of clear guidelines on presenting such expert evidence in court. The case further highlighted the need for best practices, legislation, and increased responsibility on the art market.

Then, in 2012/2013 the idea came from Prof Dr Nico Schrijver and Milko den Leeuw to establish a specialized court for legal disputes involving the authenticity of paintings.[2] With the help of Willem O. Russel and Drs Ingeborg de Jongh and with funding from Authentication in Art (AiA), and the City of The Hague, the AiA Workgroup Art & Law was established.[3] In 2014, the Workgroup drafted the 2014 Authentication in Art Guidelines on Art & Law,[4] which provide a clear model in which an expert can pour his opinion in such a way that it holds up in court. As the ‘The Plough’ proceedings underlined that for any stylistic analysis of an artwork by an art historian, or an art expert, it is important to work based on a clear protocol, the guidelines were an important step forward.

After AiA partnered with the Nederlands Arbitrage Instituut (NAI) in 2016, the AiA Mediation Board (AiA-MB) was established in 2017, only to be further renamed as the AiA/NAI Alternative Dispute Resolution Board later in the year. The newly renamed board operated under the Rules of Procedure[5] developed by the AiA Workgroup Art & Law. In January 2018, the scope of the project was extended to include all art related disputes and, on the 8 June 2018, the Court of Arbitration for Art (CAfA) was launched, under its final name, at the AiA 2018 Congress.[6] Since April 2019, CAfA is officially accepting cases.[7]

CAfA offers both arbitration and mediation as means of alternative dispute resolution to its parties. Arbitration under CAfA is governed by the CAfA Arbitration Rules, consisting of the Arbitration Rules of the NAI supplemented and modified by the AiA/NAI Adjunct Arbitration Rules.[8] Mediation under CAfA is governed by the CAfA Mediation Rules, consisting of the Mediation Rules of the NAI supplemented and modified by the AiA/NAI Adjunct Mediation Rules.[9] The proceedings at CAfA are assisted by the NAI Secretariat.

CAfA distinguishes itself through offering a wide pool of expert arbitrators and a fast resolution of disputes. The average arbitration case at CAfA takes nine months, and CAfA also offers Summary Arbitral Proceedings, which can take a maximum of one month, and is equally able to handle cases on a very short notice. The arbitration is confidential in respect to the parties to the dispute and cost effective, as compared to normal court proceedings. The award is binding on the parties and the execution of the award takes place in accordance with the New York Convention, which guarantees its broader enforcement and execution. It is also possible to file a request for arbitration online.[10] The arbitral tribunal is seated in The Hague, Netherlands.[11] The parties may be seated anywhere else in the world and the hearing can take place anywhere the parties and tribunal deem fit. This means that the Netherlands Arbitration Act applies to the arbitration generally, while the courts of The Hague have supervisory jurisdiction.[12]

The arbitrators/mediators must be appointed from among the Arbitrator/Mediator Pool compiled jointly by the CAfA Board and the NAI based upon their backgrounds and experience in handling art (law) disputes. All the names of the arbitrators/mediators and experts are public, which is a great indication of transparency. As well, the Pool is comprised of around 30% women, and a variety of experts from different jurisdictions all over the world. In the case of arbitration, for objects of art valued at or above € 1,500,000, the proceedings will be conducted before a three arbitrators’ panel. For objects of art valued below € 1,500,000, the parties will conduct their arbitration proceedings before a sole arbitrator.[13] Another unique feature of the CAfA is the Expert Pool consisting of carefully selected and renowned experts in the field of forensic science and provenance of art objects. These experts will have been vetted by a special committee of experts. If issues of material analysis or provenance arise in a CAfA arbitration or mediation, persons from the Expert Pool may be appointed as a neutral Tribunal Appointed Expert.[14]

While at CAfA the identity of the parties to any dispute is kept strictly confidential, the subject of the proceedings (the work of art: painting, sculpture, etc.) can be published in the Tijdschrift voor Arbitrage arbitration journal, provided that the parties do not object.[15] This is a default rule,[16] that the NAI and AiA are authorised to have the award published without stating the names of the parties and leaving out all other information that might reveal the parties’ identities, unless a party objects to such publication with the administrator within two months of the date of the award. However, the name or identity of the art object in question may be revealed.[17] This is because CAfA’s core purpose is to prevent forgery cases and to ease the administration of cases involving forgery. Thus, as a compromise, it was agreed that CAfA would publicly identify the fakes, to prevent their recirculation. [18] It is unclear whether the parties can still object to the idea of publishing information only on the artwork itself, that is the subject of the award in question, so as to keep the entire award confidential.

CAfA disputes can cover a variety of art law disputes, with matters ranging from chain of title, authenticity, contracts and copyright fair use.[19] CAfA’s aims, as a non-profit organisation, are to promote arbitration and mediation and other lawful means to prevent, reduce and resolve disputes that arise in the wider art community, which also includes everything related to it or beneficial to it, everything in the broadest sense of the word.[20] Since CAfA is built upon “legalists with an affinity for art, and art experts with affinity for law”, it is a huge step forward for the legal system to be properly dealing with forgery cases, as CAfA creates a civil law environment where victims of forgers can be compensated and forgers be financially penalized.[21] Undoubtedly, CAfA is a breeze of fresh air in a field where expertise was much needed for decades.

Meanwhile, the proceedings in the ‘The Plough’ case are still ongoing.[22]

Paintings on the front page:

Leonardo da Vinci – Mona Lisa, 1503, Louvre Museum, photo: public domain

Fernando Botero – Mona Lisa, 1978, Museo de Botero, photo: public domain

[1] “The Plough 1918-2018: Longest Running Forgery Case in the History of Art”, by Oliver Spapens, at Authentication in Art Congress 2018. Available at https://authenticationinart.org/pdf/papers/plough-lecture-aia.pdf

[2] “CAfA: A Brief History” https://authenticationinart.org/cafa/

[3] Ibid.

[4] https://authenticationinart.org/pdf/Authentication-In-Art-Congress-May-2014_Recommendations-of-Art-and-Law-Work-Group_Official-Release.pdf

[5] https://authenticationinart.org/cafa/

[6] https://authenticationinart.org/congress-2018/congress-program-2018/

[7] https://authenticationinart.org/pdf/artmarket/cafa-opens-april.pdf

[8] https://www.cafa.world/arbitration/rules_and_clauses/

[9] https://www.cafa.world/mediation/rules_and_clauses/

[10] https://www.cafa.world/arbitration/what_is_arbitration/

[11] https://www.smithsonianmag.com/smart-news/new-court-hague-will-deal-exclusively-art-disputes-180969052/

[12] https://www.cafa.world/arbitration/legislation/

[13] https://www.cafa.world/arbitration/arbitrators/