Summarize

Very sophisticated scam based on the alleged trust and many-many millions of dollars. Here is the overview of the range of lawsuits of the Russian oligarch versus the Swiss art logistics specialist, Rybolovlev v.Bouvier. The legal issues at stake are the fiduciary relations, separation of duties and use of insider information.

*intro by ArtLaw.club

Maria Boicova-Wynants,

Mediator, Business Writer, Trademark and Patent Attorney

A brief insight into the Rybolovlev-Bouvier “legal thriller”

The Rybolovlev-Bouvier affair might be one of the most remarkable scams in art history. The elegant and thrilling account of the relationship between the Russian billionaire Dmitry Rybolovlev and the Swiss art logistics specialist—turned art dealer and “Freeport King” — Yves Bouvier — was told by Sam Knight in “The New Yorker” two years ago (https://www.newyorker.com/magazine/2016/02/08/the-bouvier-affair). Since then there have been additional major twists to the story like tax evasion investigations by Swiss authorities into Yves Bouvier’s cross-border art sales, and a $380 million Rybolovlev’s lawsuit against the Sotheby’s auction house. The international “thriller” involving billions of dollars and some outstanding artworks by Gauguin, Picasso, Matisse, Modigliani, and even Leonardo da Vinci, at this point in time, is still far from its “concluding act”. This case  (or better a family of cases) is immensely interesting and can shed a legal light on a number of undefined or poorly defined issues of the art world. However, before enumerating them, I would like to provide some story background.

Their relationship seems to have started with Chagall and, amusingly, ended with another painter from the Paris School — Modigliani. Already more than 15 years ago Dmitry Rybolovlev acquired Chagall’s painting “Le Cirque”, which lacked the authenticity certificate. Upon arrival at the Bouvier’s Natural Le Coultre facility at the Geneva Freeport, two men assumedly have met for the first time. By getting Rybolovlev that lacking authenticity certificate, Bouvier got an initial trust with Rybolovlev. It was this trust which became the basis for a decade-long relationship between two men and it was this trust which might (or might not) make or break the case.

The essence of the dispute is that Yves Bouvier for many years was buying (selling) artworks for (to) Dmitry Rybolovlev. The complicated “buying-selling” construction of the previous sentence illustrates the central dilemma of the whole case. Rybolovlev is claiming that Bouvier was acting as his agent (thus, “buying for” Rybolovlev); while Bouvier asserts that he was acting as an independent art dealer (thus rather “selling to” Rybolovlev), which makes him free to set his own prices. Despite these fundamentally different underlying assumptions, their relationship might have continued for many more years. However, at the end of 2014 Rybolovlev accidentally found out that Modigliani Nu couché he acquired some years ago was sold by its previous owner (Steven Cohen) for $24.5 million less than Rybolovlev paid for it to Bouvier.

The above set in motion a worldwide legal battle: Rybolovlev filed lawsuits against Bouvier in Monaco, Singapore, Hong Kong, and Switzerland. In Switzerland, there is the already mentioned criminal investigation against Bouvier for tax evasion. In Monaco, there is a case against Rybolovlev for he is assumed to have exercised undue influence on Monaco’s justice minister and the state prosecutor in the whole Bouvier case. Moreover, Sotheby's together with Bouvier sued Rybolovlev in Switzerland in order to block a lawsuit Rybolovlev was planning to file in the UK. And of course, there is a recent (October 2018) lawsuit filed by Rybolovlev against Sotheby’s claiming the latter has “materially assisted the largest fraud in history”. Plus, according to the April 2018 issue of the Art Newspaper, a temporary order exists against Bouvier, which “disallows sales of personal assets worth up to $550 million and asks Bouvier to surrender Mark Rothko’s No.6 (1951) as a collateral to his would-be-debt to Rybolovlev if the court finds that the transaction was unconscionable.” At this moment the above cascade of legal and criminal proceedings in different jurisdictions of the world is at various stages of resolution.

An interesting twist to the story revolves around a particular artwork — Salvator Mundi. In November 2017 Christie’s New York in a swift 20 minute-bidding battle auctioned off one of the key works in Rybolovlev-Bouvier case — Leonardo da Vinci’s Salvator Mundi — for over $450 million (including buyer’s premium). This astronomical selling price broke the world record and made a nice profit for its previous owner, Mr. Rybolovlev, who bought the painting from (or with a help of?) Bouvier 4 years earlier for $127.5 million. Worth noting that Bouvier bought Salvator Mundi for a total of about $80 million paid in money and art from a consortium of dealers, who, in their turn, purchased the artwork for mere $10,000 (initially Salvator Mundi was attributed to a member of Leonardo’s school, not to the master himself, hence the much lower price). According to some sources (e.g. Kate Lucas from Grossman LLP) the dealers who initially sold Salvator Mundi to a Bouvier-controlled entity, are now also threatening Sotheby’s with litigation “seeking to recover at least the markup Bouvier pocketed”. This was the reason why Sotheby’s has recently filed a lawsuit to the federal court in New York for a declaratory judgment that Sotheby’s “complied with all its obligations” in connection with the Salvator Mundi deal and thus, has no further liability to the dealers. Interestingly, as reported by Bloomberg in May 2018, US investigators initiated and after a year dropped a fraud probe into Bouvier assumedly exactly because of this outstanding Christie’s auction. Citing Artnet (with reference to the Bloomberg’s report): “Had the case proceeded, Rybolovlev’s windfall could have enabled the defense to claim that he wasn’t a fraud victim because he profited in the end.”

The Rybolovlev-Bouvier affair raises a number of important legal issues. Probably the most notable of them is related to the fiduciary relationship between different actors in the obscure world of the private art deals. The fiduciary relationship is the highest standard of care in equity or law. It implies the good faith and the ultimate loyalty of the fiduciary to the principal. The fiduciary relationship by definition gives no space to any conflict of interest, as well as excludes the possibility for the fiduciary to profit from his position without the explicit consent of the principal. In other words, the fiduciary relationship is the combination of the duty to care, the duty of loyalty and the duty of good faith. The concept is relatively fluid as there is no legal or formal requirement for the establishment of the fiduciary relationship. It is about trust, confidence and... information asymmetry. To note, that the art world and especially the world of private art sales is largely influenced by such information asymmetry. In the Rybolovlev-Bouvier affair, the court is yet to decide whether the 2% Bouvier was receiving after every sale was administrative costs or an agent’s commission and overall whether the fiduciary relationship between the two men was indeed established. Therefore, it remains to be seen whether Bouvier’s actions will be qualified as a violation of his fiduciary duties, or they were merely the exercise of a good old adage of “buy low — sell high”.

Furthermore, an additional matter highlighted by the Rybolovlev-Bouvier affair is the separation of duties related to building a collection. In practice it is most often self-regulated in the sense that there are different people involved in various stages: due diligence, storage, restoration, condition reports, insurance, and actual art consulting or art advising. In the Rybolovlev-Bouvier affair according to “The New Yorker” all of these structurally different services were offered by Bouvier in a so-to-say, a package. That is for sure not prohibited, however, as mentioned, it is also not really done this way. Usually. If it happens though, that by definition gives rise to plenty of situations of the conflict of interest. The proverbial caveat emptor (buyer beware) is, thus, manifold intensified.

It would also be intriguing to hear the court’s opinion on the matter of the use of insider information. As mentioned already, the insider information literally fuels the art sales. As famous economist Nouriel Roubini stressed in this respect (when advocating for more regulation in the art market), a lot of things are tolerated in the art market, which would be illegal anywhere else. Consider in this sense the mentioned insider information. Should one use it for buying or selling shares of the company, that would be illegal, unethical and punishable. Contrarily, in the art market, operating on the insider information is business as usual.

Whatever the outcome of the legal battle between the two powerful men, Yves Bouvier has helped Dmitry Rybolovlev assemble a truly outstanding collection of art. Whether for that he was acting legally correct is for the courts to decide. Whether his actions were ethically correct is yet another question. Ethics is a combination of moral principles, an understanding of right and wrong. However, in the unregulated and secretive market with obscure price-setting decisions are guided by a fair share of opportunism and the clear definition of right and wrong becomes a truly complicated task.