United States: Art Litigator Charron Interviewed By Authentication In Art (AiA)

Last Updated: November 9 2017
Article by William L. Charron

William Charron, Co-Chair of Pryor Cashman's Art Law practice, was recently interviewed by painting conservator Milko den Leeuw for the Authentication in Art (AiA) Newsletter. Charron, a litigator who represents institutional and individual clients on art authenticity, title and other matters, is an advisory board member of AIA.

Excerpts from the Q&A are published below.

Milko den Leeuw:  The Workgroup Art & Law, over which you preside, is currently helping to develop the AiA Alternative Dispute Resolution Board that is to be launched at the 2018 AiA Congress. AiA followed and analyzed many authenticity lawsuits over the last few years. It has become perfectly clear that there is a need for a specialized tribunal. Where will AiA make the difference?

William Charron:  AiA will help to "flatten the learning curve" that can often accompany art authenticity disputes, thereby hopefully giving greater comfort to the market about the accuracy and reliability of the results.

In the U.S., for instance, you see courts openly acknowledge that they are not the appropriate places to decide authenticity disputes – because they are not properly equipped to do so. Courts are reactive bodies that are charged with weighing the evidence that is gathered by the parties and presented to them on an adversarial basis. In the U.S., courts will generally decide whether the evidence presented "more likely than not" supports a conclusion that a work is genuine or fake. But in that context you can see courts struggle to weigh opinions by experts, particularly in cases of connoisseurs. Consequently, you can easily have a dynamic where a court may find that a work may be authentic based on all of the evidence presented, even though a leading connoisseur of the kind of art at issue – or even the artist him/herself – rejects or disavows the work as a fake. The market is made no better off by such outcomes.

In addition, where generalized (i.e., non-specialized) courts are not particularly conversant in art authenticity disputes, the costs and lengths of time to resolve such cases can become unnecessarily inflated as the courts err on the side of allowing parties to conduct discovery exercises that may be cumulative or not really helpful.

The goal of the AiA ADR/MB Tribunal is to empanel decision-makers who are experienced and well versed in these kinds of cases (i.e., lawyers who regularly practice in the field of art law), and are thus better equipped to evaluate and weigh the evidence presented. That should make the process considerably more efficient, cost-effective, and reliable. Moreover, the Tribunal will employ a relatively unique expert apparatus that is designed to give further reliability and comfort to the decision-making process and the decisions themselves.

The Tribunal will have panels of special masters who will aid the arbitrators in fashioning appropriate discovery plans for each particular case. The Tribunal will also have panels of experts among the forensic science and art history/provenance researcher communities who will serve as experts "to the Arbitrators," thereby avoiding many of the problems inherent in a more classic adversarial system where competing experts duel and effectively advocate for their side. The parties as well as the arbitrators will be able to cross-examine the Tribunal's experts, and the experts will be permitted to revise or supplement their work if any omissions or failings are revealed by such examinations. The goal, again, is to get the answer right, and not merely to give credit to the side that appears to have a stronger presentation relative to its adversary.

MdL:  Do you think there will be positive impact with a specialized AiA ADR/MB Board on art cases?

WC:  I think the ADR/MB Tribunal could be game-changing for art authenticity disputes. Because parties must agree in their contracts to arbitrate or mediate such disputes, it will be important to educate and incentivize major institutions to include "AiA" arbitration and/or mediation provisions in their standard contracts. We look forward to approaching and working with institutions and associations such as artist foundations, auction houses, dealers, appraisers, consultants and professional advisors, and museums. The objective is to make "AiA Arbitration/Mediation" a standard art contract term and a market norm, thereby dramatically improving the efficiency of resolution of these types of specialized disputes.

MdL:  At this very moment the AiA Art & Law Workgroup is preparing the rules of procedure and several requirements for having the AiA ADR/MB Board up and working. Technical innovations will play an important role. It seems to me that the worlds of many modern IT applications are coming together. Do you see that we make there an important step forward in making lawsuits also learning moments for the art community?

WC:  The Workgroup has focused on two primary audiences: litigating parties, and the art community at large, including potential future dealers and buyers of challenged art. We think the publication of decisions, coupled with the rigorous and institutionally unbiased analyses of the Tribunal's experts, should significantly aid the knowledge of the art community.

To read the full interview, please visit here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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