The Fine Art of Arbitration: Why Arbitration Provides an Attractive Canvas for Resolving Art Disputes

The art market is a place where privacy is prized and confidentiality is king. Yet, when disputes inevitably arise, they all too often end up in court, generating headlines and damaging reputations. Arbitration is a wholly private dispute resolution mechanism allowing parties a fair, flexible, adjudicative framework to argue their cases outside of the traditional court system. For these reasons, arbitration provides an attractive forum to assist in the resolution of art and cultural heritage disputes. 

Anecdotally, more and more art market participants are considering arbitration as their preferred method of resolving disputes, supported by a growing variety of specialised arbitration providers. This trend suggests that the fundamental advantages of arbitration are particularly well-suited to the unique needs of the art world. This article explores various reasons why arbitration has emerged as the favoured alternative to court litigation for sophisticated dealers and collectors.

An Attractive Landscape  

Arbitration is essentially a private court hearing. Like traditional litigation, parties present their cases through written submissions and oral arguments before neutral decision-makers who impose binding rulings. However, the proceedings remain entirely confidential, parties select their own arbitrators, and the process provides greater procedural flexibility than rigid court systems. Unlike mediation, which only binds parties if they sign a settlement agreement, arbitration results in a final and enforceable decision. 

Key advantages for art disputes include: 

• Confidentiality - a key feature of the art world is relationships built on trust and personal connections over many years.  In a realm in which reputation is everything, arbitration allows parties to keep their dispute confidential and to settle it in a more discreet manner without attracting potentially negative publicity.  This can be important from the perspectives of the parties involved (e.g. a dealer or auction house would want to safeguard its reputation) but also for the artwork, which is the subject of the dispute (they can become unsellable or at least devalued as a result of adverse publicity). The two cases below (both relating to authenticity) illustrate the very real issues of pursuing redress through the (public) court system. 

• Qatar Investment & Projects Development Holding Co. & Anor v. John Eskenazi Ltd & Anor [2022] EWHC 3023 (Comm.). In this case, QIPCO advanced claims for breach of contract, misrepresentation and in the tort of negligence in relation to the acquisition of seven (purportedly) antique objects.  Having carefully analysed and weighed the evidence in respect of each of the antique objects, the judge found that the defendant was negligent and that 'no reasonable leading specialist antique dealer would have expressed an unqualified opinion' that the particular object in issue was ancient.  The judge's comments will remain as a matter of permanent public record.  

• Greenberg Gallery v. Bauman 817 F. Supp. 167 (D.D.C. 1993). This was a case of the U.S. Court of Appeals on appeal from the District of Columbia Circuit.  The claimants (four art dealers) began to have doubts as to the authenticity of an Andrew Calder mobile sold to them by the defendant. When the defendant refused to rescind the contract, they sued her for fraud, breach of express warranty and material mistake of fact. During the hearing, the judge heard evidence from two experts appointed by the parties who presented diametrically opposed views as to the authenticity of the Calder mobile. The judge found the defendant's expert evidence (that the mobile was an original Calder) more persuasive with the result that the four art dealers were left in the unenviable position of being in possession of an artwork which the court had authenticated as an original but which the art market now viewed with suspicion, based on the claimant’s expert's assessment, rendering it effectively unsellable.

• Flexibility – arbitration is consensual in nature, parties having a degree of control over the process and the ability to tailor procedures to reflect the nature and size of the dispute. In the arbitration clause, parties may stipulate the number (typically one or three) and qualifications of arbitrators (e.g. industry experts, level of experience), select the language of proceedings, and decide the seat (which determines which country's laws will apply to the procedural aspects of the arbitration) and venue.
  

• Expertise – parties can nominate arbitrators with specific expertise relevant to their dispute. For example, the Court of Arbitration for Art (CAfA) requires arbitrators to be (formerly) qualified lawyers, judges, or law professors with five years' significant experience in relevant fields including: (i) authenticity; (ii) chain of title/restitution; (iii) art sales and auctions; (iv) art copyright; or (v) taxation, trusts, and estates.
  
  While courts can adapt to new industries, unfamiliarity with art market practices sometimes leads to surprising findings. In Accidia Foundation v Simon C Dickinson Ltd [2010] EWHC 3058 (Ch), the judge incorrectly found that net return agreements — where dealers guarantee sellers minimum proceeds while retaining any excess from higher sales — were uncommon in the market, despite those being standard practice at the time.
     
  The ability to appoint a tribunal with both legal and technical expertise can substantially enhance the decision-making process and is more likely to result in a decision that is acceptable to the art market.       

• Neutrality – due to the international nature of the art market, arbitration is appealing for parties involved in cross-border agreements or transactions related to artworks. It minimises any perceived bias or unfairness that might arise in the national courts of one party, ensuring that no one gains an actual or perceived advantage by referring a dispute to an already familiar court system.
• Finality – court judgments are frequently subject to appeal(s), whereas opportunities for challenging arbitration awards are far more limited.  Under English law, for example, an award may be challenged under the Arbitration Act 1996 for lack of jurisdiction or fundamental procedural flaws (such as, Section 68 serious irregularity), but the scope of review is tightly constrained. The newly introduced Arbitration Act 2025 retains the core framework of the Arbitration Act 1996 including the limited ability to challenge arbitral awards.
  
  Arbitration thereby offers greater finality, reducing the risk of prolonged appeals that can increase costs, delay, and uncertainty. That said, unlike court judgments, arbitral awards do not create binding precedent, meaning future tribunals deciding similar cases are not bound by previous awards.  

• Enforceability – one of arbitration’s most attractive features is the relative ease of cross-border enforcement under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), which currently has 172 contracting states, compared to enforcing domestic court judgments internationally. Under the New York Convention, courts in contracting states must recognise and enforce arbitral awards unless the resisting party proves one of the narrowly defined grounds for refusal.  

• Remedies – arbitration can also provide remedies not typically available in litigation, such as solutions beyond monetary relief (for example, compensatory provision of artworks, long-term loans, or co-ownership).  This creates potential for mutually acceptable resolutions for all parties. 

Outside the Frame: When Disputes Cannot be Arbitrated

Not every dispute can be resolved through arbitration — a concept known as "arbitrability." While criminal matters are generally excluded from arbitration, jurisdictions differ significantly in their approaches to other areas, and these boundaries continue to evolve:

• Fraud is often arbitrable - although fraud allegations can raise public policy concerns and potential criminal liability, such disputes are typically still arbitrable. This means that even when serious allegations of forgery, misattribution, or fraudulent dealing arise in art transactions, parties can still resolve these matters through arbitration rather than court proceedings.

• Consumer disputes face restrictions - Consumer disputes present the greatest challenges, as legal systems worldwide have increasingly imposed protective restrictions to shield individual buyers from potentially unfair arbitration clauses. 
  
  In England, consumer protection disputes are arbitrable in principle, but arbitration clauses face careful scrutiny under the Consumer Rights Act 2015 (CRA).  When artwork purchases involve consumers — defined as individuals (i.e. natural persons) acting wholly or mainly outside their trade, business, craft, or profession — specific protections apply. For artworks valued under £5,000, arbitration agreements become automatically unfair and unenforceable. Above that threshold, arbitration clauses still risk being struck down if deemed "unfair", such as when they place disproportionate burdens on the consumer's ability to assert their rights. For example, in Amir Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297, Mr. Soleymani challenged the fairness of an NFT auction and refused to pay, leading Nifty to initiate JAMS arbitration in New York per its Terms and Conditions. Soleymani then contested the arbitration agreement and auction validity in the English courts. Nifty sought to stay the proceedings, which the High Court granted. However, the Court of Appeal reversed this, finding a plausible consumer contract connection to the UK, concluding the English courts were better suited to assess the arbitration agreement's validity, and ordered a trial on these issues.  
  
  However, these CRA protections have clear boundaries. Companies and organisations cannot qualify as consumers, meaning business-to-business art transactions remain unaffected. Consequently, artworks purchased through corporate vehicles or special purpose entities fall outside the CRA's scope entirely. When consumer status is disputed, the burden lies with the trader — whether dealer, gallery, or auction house — to prove the buyer is not a consumer, creating an additional layer of protection for individual purchasers. 
  
  These consumer protections extend beyond purely domestic transactions. In international art sales, whether English consumer law applies depends on conflict-of-law principles, including the contract's "close connection" to England. Even when parties agree to arbitrate under foreign law, English courts retain the power to refuse enforcement of any resulting award if it contravenes domestic consumer protection rules. This means that art dealers and auction houses cannot simply circumvent the CRA protections by choosing foreign arbitration venues or governing law when dealing with English consumers.

A Palette of Options

When choosing arbitration, parties can have their art disputes arbitrated either ad hoc or through institutional arbitration. 

Ad Hoc

An ad hoc arbitration is one which is not administered by an institution, allowing parties to design their own procedures. While potentially more flexible, faster, and cheaper (with no administrative fees), it requires greater cooperation and expertise from the parties. The ad hoc arbitration agreement can be simple but should at the very least specify the seat of the arbitration, as this impacts the applicable procedural law and the enforceability of the award. However, the effectiveness of the agreement relies on how willing the parties are to agree on arbitration procedures, especially when a dispute may already exist. If one or both parties fail to cooperate fully, it can lead to delays in resolving issues or ultimately result in the need to resort to court. 

Institutional arbitration

Institutional arbitration provides established rules and administrative support through either specialised art-focused institutions or general commercial arbitration bodies. Several institutions offer services specifically tailored to art market disputes, including:

• CAfA - in 2018, the Netherlands Arbitration Institute (NAI) and the Hague-based Authentication In Art (AIA) set up CAfA, which is dedicated exclusively to art law disputes. A unique aspect of CAfA is its rules on expert witnesses. When it comes to expert evidence on issues of forensic science or provenance, the expertise must come from professionals appointed by the arbitral tribunal (Article 28(7) of the CAfA Rules). This requirement appears intended to avoid any potential bias that could arise from experts hired (and paid) by the parties, ensuring that the expert opinions are as objective as possible, which in turn would presumably make the outcome of the case more likely to be accepted within the art market. Notably, CAfA Rules allow the NAI (and AIA) to publish an anonymised copy of the award (Article 51 of the CAfA Rules).   

• WIPO - the World Intellectual Property Organisation is based in Geneva and provides services to assist parties resolve disputes involving art and cultural heritage. It has established rules for arbitration, mediation and expert determination that parties can use to govern their disputes. The organisation also acts as a neutral, independent administering institution.

• Venice Chamber of Arbitration - this institution was established in 1990. Its Art Arbitration Rules came into force in January 2021 and applies to proceedings commenced before 14 July 2023.  Updated Art Arbitration Rules were introduced to apply to arbitrations commenced from 15 July 2023 onwards in response to the general reform of Italy's justice system.

General Commercial Institutions

Art market participants are not limited to specialist institutions. Established commercial arbitration bodies — including the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), and Singapore International Arbitration Centre (SIAC) — are equally capable of administering art-related disputes and offer the advantage of operating as established and trusted institutions in leading arbitration jurisdictions. 

The choice of seat is crucial as it determines the procedural law governing the arbitration and affects court supervision and challenge avenues. Pro-arbitration jurisdictions like England provide robust judicial support under the Arbitration Acts 1996 and 2025, with courts traditionally reluctant to intervene unless necessary. While hearings may physically take place anywhere convenient, the seat remains the arbitration's legal home and determines which courts have supervisory powers for interim relief, jurisdictional challenges, or setting aside awards. 

The 2025 International Arbitration Survey of arbitration practitioners and their clients found that London ranks as the top global seat of arbitration (34% of respondents), followed closely by Singapore and Hong Kong (both 31%), Beijing (20%), and Paris (19%).  Each arbitral institution provides model arbitration clauses for direct incorporation into agreements, and selecting generalist bodies in these leading jurisdictions may offer strategic advantages.

Conclusion 

Any connoisseur of previous court decisions involving art disputes will be aware of the limitations of court litigation. The most famous case, arguably, is that of Maria Altmann who ultimately agreed to arbitration with the Republic of Austria in her claim for restitution of 6 Klimt paintings looted by the Nazis during WWII, following a long, costly and fruitless battle in the US courts (The Republic of Austria v Maria Altmann (03-13) 541 U.S. 677 (2004) 327 F.3d 1246).   

Other judicial shortcomings are highlighted by cases such as the "Plough case" – the longest-running fraud case in history (1918-2018) – which suffered from a lack of judicial expertise as well as conflicting (subjective) expert opinions as to the authenticity of the painting at the heart of the dispute. The judiciary itself has recognised its limitations in ruling on art disputes, most notably Justice Oliver Wendell Holmes, Jr., who famously stated in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 47 L.Ed. 460 (1903), that "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits." 

In view of these examples, the prospect of a confidential, neutral, flexible process tailored to meet the specific needs of the parties presents an attractive proposition for resolving art disputes.  However, arbitration requires a valid agreement to arbitrate — without such an agreement, arbitration is simply not possible – and the subject matter of the dispute must be capable of arbitration.   

Although there is little publicly available empirical data on the use of arbitration services for art-related disputes (due to the confidential nature of the arbitral process) the establishment of services focused specifically on the art market clearly demonstrates the appetite of market participants for arbitration. As awareness grows, arbitration is increasingly emerging as the dispute resolution method of choice for sophisticated art market players.