Buying a painting straight from the source, one would have thought, offered maximum protection against fakes. Not always: In a judgment last week, the District Court (Landgericht) Düsseldorf ordered that a fake Immendorf painting titled „Ready-Made de l’Histoire dans Café de Flore“ (pictured to the left) be destroyed.
On September 25, 2012, the European Parliament published its amendments to the Commission’s report on the proposed “recast” of the Brussels I Regulation. “Brussels” I is shorthand for the “Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”, the European Union’s central piece of legislation on the subject. Some of the Parliament’s amendments deal with the interplay of arbitration and the Brussels I Regulation. Claims for the resitution of works of art are now also addressed as a seperate item.”
On arbitration, the original Commission proposal had simply stated in the recitals:
“”(11) This Regulation does not apply to arbitration, save in the limited case provided for therein. In particular, it does not apply to the form, existence, validity or effects of arbitration agreements, the powers of the arbitrators, the procedure before arbitral tribunals, and the validity, annulment, and recognition and enforcement of arbitral awards.”
As a result of the ECJ’s ruling in West Tankers (see the Online Symposium on the topic at Conflictoflaws.net for details), the Commission had proposed a mechanism to deal with the lis pendens issue between state courts on the one hand, and arbitral tribunals on the other. The European Parliament now expands on the subject as follows:
“”(11) This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a Member State, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration or from staying or dismissing the proceedings and from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law.
(11a) A ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal issue or as an incidental question.
(11b) On the other hand, where a court, exercising jurisdiction under this Regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court’s judgment on the substance of the matter from being recognised and, as the case may be, enforced in accordance with this Regulation. This should be without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958, which takes precedence over this Regulation.
(11c) This Regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of the arbitral tribunal, the powers of the arbitrators, the conduct of the arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award.”
On art restitution claims, the Eurpean Parliament has added the following objective:
“(13a) The owner of cultural objects as defined in Article 1(1) of Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State should be able under this Regulation to initiate civil proceedings for the recovery, based on ownership, of a cultural object in the courts for the place where the cultural object is situated at the time the court is seised. Such proceedings should be without prejudice to proceedings initiated under Directive 93/7/EEC.”
Last year, Wolfgang Beltracchi had been making headlines as one of the most, shall I say, “successful” counterfeiters in recent art history, when criminal proceedings were brought against him. Beltracchi had specialized in forging German expressionist painters. He managed to invent a completely fictitious early 20th century art collection, the Werner Jägers collection. His works of art thus gained a first class pedigree, and were sold through renowned auction houses such as Christie’s in London or Lempertz in Cologne. In the criminal proceedings against him and his helpers, it became known that the turn-over Beltracchi’s art scam had generated was in the tens of millions of Euros. The buyer of a fake painting brought an action against the Lempertz auction house for damages. In a judgment issued today, the District Court (Landgericht) Cologne held Lempertz liable and ordered it to hold the buyer harmless for the purchase price in the order of EUR 2.9 million. Continue reading