The Court of Arbitration for Art (CAfA) is a joint initiative of the Netherlands Arbitration Institute and Authentication in Art, founded in 2018 to resolve disputes in the wider art community through mediation and arbitration. The court offers parties to administrate their arbitration and mediation proceedings with the assistance of the Secretariat of the Netherlands Arbitration Institute. ArtLaw.club is glad to offer you an interview by Ms Maria Boicova-Wynants (management consultant, IP and Art lawyer and mediator inter alia at CAfA) with the Executive Officer of CAfA Ms Hetty de Rooij.
Maria: The establishment of CAfA is an important milestone for the art world, as this is the first international alternative dispute resolution center focused exclusively on art-related disputes. Can you tell our readers what makes CAfA stand apart from other dispute resolution institutions? How did the idea of CAfA originate in the first place?
Hetty: As the first specialised arbitration and mediation institution dealing with all disputes relating to art, CAfA offers Arbitration and Mediation Rules specifically developed to facilitate the resolution of disputes in this market. These two sets of Rules were drafted after consultation with international art and art law experts and practitioners, taking on board their first-hand experience with the difficulties that typically arise in these kinds of disputes. A particular concern were lengthy and costly court proceedings that result in judgments that are subsequently not recognised by the international art community. The CAfA Arbitration and Mediation Rules have been drafted to avoid the pitfalls of regular court proceedings. They include distinguishing features such as the Arbitrator and Mediator Pools, which consist of 170+ top-notch arbitrators, mediators and art law specialists from across the globe, ready to serve as an arbitrator or mediator in cases administered by CAfA. This makes CAfA a unique forum to resort to in case of (complex) art disputes. Further, the Arbitration Rules contain detailed provisions on expert evidence, in particular in relation to provenance and forensic science issues and offer the option of appointing a Technical Process Advisor in case of highly complex or technical evidentiary issues, such as those concerning the evidence of the authenticity of a work of art.
CAfA is based in The Hague and was launched by two non-profit organisations, Authentication in Art (AiA) and the Netherlands Arbitration Institute (NAI) at the annual AiA Congress in 2018. There was a universal feeling at the time that the art market would benefit from a specialised dispute resolution institution, and that’s why a working group was created that ultimately lead to the setting up of CAfA. Although CAfA is a new institution, it builds on the 70+ years of experience of the NAI and has full back office support with NAI Legal Counsel and Case Managers administering the disputes.
Maria: CAfA has appointed a number of arbitrators and mediators. However, a unique feature of the CAfA Arbitration Rules and Mediation Rules is also the pool of Experts in the field of forensic science and provenance of art objects. Can you briefly elaborate on how this expert pool is selected and how does it intend to function in the proceedings?
Hetty: The CAfA Expert Pool will consist of carefully selected experts who can be appointed by the Arbitral Tribunal to give neutral evidence on issues of forensic science and provenance. A selection committee of renowned experts, consisting of Dr. Sharon Hecker, Prof. Dr. Lynn Rother and Ms Jennifer Mass, will scrutinise all applications against the selection criteria developed for the Expert Pool, which that can be found on the CAfA website. CAfA has recently opened up the application procedure for the Expert Pool, and is still accepting applications. In addition, CAfA is also actively approaching reputable experts who come recommended by practitioners in our network. We expect to complete the work on the Expert Pool in the coming months.
Maria: The Court currently offers both Arbitration and Mediation routes. Do you see equal demand for them or one of the procedures seems more attractive to the art world than the other? If so, are there any initiatives to promote the use of both routes? And as an add-on: are there intentions to introduce the hybrid Med-Arb (Arb-Med or perhaps Arb-Med-Arb) routes in the future?
Hetty: Both types of alternative dispute resolution mechanisms can be very valuable to parties in a dispute. Some of those disputes will be particularly suitable for mediation, especially if there is an on-going relationship that needs to be salvaged. But there will not always be an appetite for reaching a settlement in this way, and there are also cases where the parties have an interest in having an independent decision-maker rendering a final and binding decision on the issues that keep the parties apart. That can sometimes be the only way in which parties are able to move forward. In that case, arbitration is the better option. CAfA is offering both services to parties, and will promote both simultaneously as tools that can be useful for parties in case of a dispute. CAfA will certainly also reflect on developing further hybrid versions if there is a demand for such alternatives in the market. In that sense, CAfA truly is an intiative from and for the art market: CAfA welcomes feedback and suggestions to improve its procedures to better suit the needs of all users in the art market.
Maria: Does CAfA accept all art-related disputes or there are certain limitations or restrictions?
Hetty: There are no restrictions for the types of disputes that are accepted by CAfA. CAfA deals with art disputes in the broadest sense. In practice, this means that any dispute that has some connection to a work of art can be brought before CAfA. The issues that CAfA deals with can therefore vary from authenticity and provenance disputes to cultural heritage, loan agreements, insurance and tax issues.
Maria: What are the main current challenges for the Court?
Hetty: As a new institution, CAfA is still working hard to ensure that potential users find their way to us and embrace arbitration and mediation as real alternatives and valuable additional tools in the resolution of their disputes. No one wants to think about potential disputes when purchasing a work of art, but that is precisely the moment that parties should carefully reflect on the fallback scenario for the situation that a dispute does arise despite everyone’s good intentions at the outset. To that end, CAfA has also published model clauses on its website, which the parties can consider when drafting their contracts.
Maria: Thank you very much for your time and responses!