ART AND CULTURAL PROPERTY LAW : An Introduction

The small but emerging field of cultural property law at the English Bar continued to show a steady and recognised growth over the last year. With the increasing focus on sector-based specialisms across the legal market place, the small number of practitioners within the area have ensured the consolidation of the field as a distinct practice area.

The nature and quantity of art and cultural property work is, unsurprisingly, driven by the art market itself. Throughout the global recession and the domestic uncertainty following the Brexit vote, the value and saleability of the very best art has continued to increase. This has led to a trickle-down effect and the volume of transactions has continued to rise. The increase in the importance of due diligence and provenance research, as well as the cross-border nature of many of the transactions within the field, has ensured that the rise in value of the work has been matched with a rise in complexity.

The practice area is now well cemented and receives recognition across the board. It is, however, extremely small and specialised, with both expertise and experience remaining with a narrow field of practitioners. The depth of knowledge which those practitioners bring to cases in the area is generally seen as underpinning the expansion of the practice area at both the junior and leading Bar. That trend is likely to continue in the foreseeable future.

Overview of 2017-2018
Despite the relatively small size of the art and cultural property law field and the uncertainty in the global and domestic political and economic landscape, the volume of work, both contentious and non-contentious, has continued to increase steadily over the past twelve months. Art continues to be seen as a relatively safe asset class and the increase in investing in art as a commodity sees no sign of abating. Although the boundaries of the practice area are often difficult to define, the common thread of all the work in this area is that it centres around art, the art market or cultural property.

Disputes over authenticity and attribution have, as in previous years, received considerable attention in the legal press, the art press and more generally. The financial value of these disputes has continued to see an increase along with the increase in value of works by the most desirable artists, making such disputes more commercially viable (and increasing the avenues of funding available to both claimants and defendants). The emphasis on marketable provenance and unimpeachable title in the international art market (both in relation to transactions concerning private buyers and institutional buyers) has continued and with it the increase in the volume and complexity of litigation in this area seen in recent years. As standards and expectations increase across the sector (which is largely unregulated), professional negligence claims have continued to receive increased prominence.

Disputes as to ownership, title and agency continue to form a significant part of the workload in this area. In common with other areas which commonly involve international transactions the art and cultural property field often raises difficult conflicts of laws arguments and attempts at forum shopping. Claims concerning possession (rather than ownership) and involving bailment and consignment continue to play a significant role. The continuous prevalence of domestic and international regulation ensures that the significant growth in the non-contentious element of such transactions, involving advising on the drafting of consignment and loan agreements, as well as the effect of various consumer protection measures, remains steady.

Taxation of art is also an important and valuable source of work. While the majority of this is non-contentious, contentious disputes inevitably arise. The acceptance in lieu and related schemes have continued to provide a significant source of work (albeit that this is often less prominent at the Bar than amongst solicitors’ firms). Issues involving the export and import (temporary or permanent) of artwork are a similarly significant feature.

Restitutionary claims have continued to increase and expand in complexity. These fall into a number of categories, including civil claims based on common law principles of restitution or claims brought in reliance on foreign statutory regimes. Looted and stolen art (which, in common with much of the work in this practice area, inevitably has a cross-border element) have continued to be a feature of the contentious landscape. Claims before the Spoliation Advisory Panel and involving the 1970 UNESCO Convention have continued to be fewer in number but nonetheless remain an important feature of work in this field. In particular, HM Government has indicated that it will continue the work of the SAP indefinitely and the number of claims which it sees appears to remain steady despite the passage of time.

The Year Ahead and Beyond
The indicators which have seen the increasing recognition of the art and cultural property law field over previous years remain and it is expected that although the field will remain small, the numbers of cases with which its practitioners deal will increase.

Over recent years, cases which are in the public sphere have shown an increasing willingness of the court to engage with the international art market on its own terms (in particular in considering the manner in which attribution and valuation is arrived at but also as to agency and commission arrangements). It is to be expected that this trend will continue as the court becomes more used to such claims and the sophistication of the legal analysis applied continues to increase.

Brexit remains a considerable source of uncertainty and, one way or another, it is likely to be a significant factor in shaping the growth of the art and cultural property field. Much of the legislation which affects the art market (including consumer rights and intellectual property) is derived from EU regulations. It may well be that the immediate effect of the UK’s withdrawal from the EU will lead to a short-term increase in work in the area. Its long-term impact (which will inevitably be linked to the extent to which London maintains its prominence as a commercial centre of the international art market) is less clear.