Art and Arbitration: In Conversation with Camilla Perera-de Wit and Bert Demarsin
- Elliot Wright
- Jun 22, 2021
- 8 min read
Updated: Jun 27
Camilla Perera-de Wit is the Secretary-General and Director-General of the Netherlands Arbitration Institute (NAI). Her previous experience in dispute resolution includes her work at the Permanent Court of Arbitration (PCA) and at P.R.I.M.E. Finance. She is a board member of the Court for Arbitration of Art (CAfA) in Rotterdam.
Bert Demarsin is a law professor at KU Leuven, who has conducted extensive work on art disputes. His work particularly focuses on provenance and authenticity disputes. He is also a board member of CAfA.
Elliot Wright spoke in December 2020 with two of CAfA’s board members, Camilla Perera-de Wit and Bert Demarsin. We spoke about the nature and current state of art law, including difficulties in recent years, and the role CAfA can play in this field, as well as arbitration more generally.
Art law
Demarsin started by explaining that ‘there are actually four big fields within art and cultural heritage law’. First, art has to be created—so there can be issues with attribution and copyright. Second, art has to be preserved—this is not so true for contemporary art perhaps, but for cultural heritage there are a whole host of regulations, for instance on whether it can be exported or on how it should be restored or preserved. Third, circulation, which Demarsin describes as being the basis of the art business. This field covers auctions, authenticity, theft, and smuggling and other issues relating to the movement of art. Fourth, and finally, is the field Demarsin calls valorisation—which is how one can take advantage of one’s ownership of art, and realise its value through exhibitions or merchandising, and the conflicts that might arise from this.
Whilst conflicts can, and do, arise in all these areas, most arise in respect of circulation, as this is where the business of art trading is carried out. The vast capital in this market means disputes are more likely to arise from any disagreement, and the number of transactions means disagreements are not uncommon. There are also circulation issues in respect of restitution of art, and questions of looted art and cultural heritage. Even now there are cases arising from asserting ownership of art which was unlawfully confiscated in the Second World War, as well as ongoing disputes in relation to cultural heritage such as that surrounding the Elgin Marbles, and more recent debates on the restitution of colonial heritage. Here, Demarsin refers to his native Belgium’s colony in the Congo, but of course other European states, such as the UK, similarly seized art in that period. These are the disputes which feature more prominently in the public press, and therefore also the public conscience more generally, but for art dealers authentication is a more common and important problem.
Perera-de Wit then spoke about some of the features of art law which present unique challenges in dispute resolution. Speaking from her experience in dispute resolution, including at the Permanent Court for Arbitration (PCA) and at P.R.I.M.E. Finance, she pointed to the increasing complexity and globalisation of disputes, including in the art world. In the art world, parties are increasingly likely to be based in different jurisdictions, and traceable agreements documenting the transactions are not always in place. Where disputes arise, they can be technical in nature. They benefit from specialist legal knowledge as well as expert factual analysis. That expertise is not always readily available in the local courts, which makes alternative dispute resolution an attractive option in the art world. This also led to the founding of CAfA, to prevent such disputes being resolved by what could be ‘a roll of the dice’, as Perera-de Wit put it, as to whether the dispute was resolved in a time-efficient manner with an outcome that the markets can rely upon.
