Judith L. Pearson, President ARIS Title Insurance Corporation New York + Denver, United States Protecting the Well-Informed Art and Collectibles World. Session 1 October 16, 2013 Beyond Basics: Review and Analysis of Art Market Regulation, Art Finance, Collection Management and Online Art Trading Platforms Week 2: Art Market Regulation (Or Lack Thereof)… October 23, 2013
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Judith L. Pearson, President
ARIS Title Insurance CorporationNew York + Denver, United States
Protecting the Well-Informed Art and Collectibles World.
Session 1October 16, 2013
Beyond Basics: Review and Analysis of Art Market Regulation, Art Finance, Collection Management and Online Art Trading Platforms
Week 2: Art Market Regulation (Or Lack Thereof)…October 23, 2013
Judith L. Pearson, President
ARIS Title Insurance CorporationNew York + Denver, United States
Risk management for art assets
April, 2012
Protecting the Well-Informed Art and Collectibles World.
Lawrence M. Shindell, J.D.
ChairmanARIS Title Insurance CorporationU.S.-New York Headquarters
General legal principles – developed in case law, legislation, treaties, memoranda of understanding – apply to art transactions; can be unpredictable and produces ad hoc self-regulation
No federal, state, local, regional, international or otherwise comprehensive art market regulatory scheme; choice of law is often issue-determinative
Past market force to change status quo and to achieve market regulation
Enforcement of laws (e.g., criminal, import/export) subject to prosecutorial discretion; in U.S. subject tobudget/efforts of ICE, FBI, District Attorney
Uniform Commercial Code (UCC): UCC-1 filings “perfect” security interests; UCC protects GFP in ordinary course (excludes sophisticated collectors and merchants); unperfected, consigned art absorbed into gallery inventory upon bankruptcy (artist consignment exception)
Personal Property Security Act (PPSA) Canadian equivalent to UCC; Register of Charges, U.K. equivalent
Uniform Standards of Professional Appraisal Practice (USPAP): Guidelines for valuing art for U.S. IRC tax purposes; de facto standard for valuing art in EU
International Valuation Standards (IVS), Royal Institution of Chartered Surveyors (RICS): U.K. equivalents to USPAP
UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property 1970: Accepted/ratified by 124 countries; source countries still pursue recovery of objects outside their borders pre-1970 per national laws (i.e., Italy 1902; Turkey 1908)
Replevin Claim. In New York, “demand and refusal” rule applies to three year statute of limitations; after claimant meets threshold burden of proof finding of theft, possessor has burden or proof to show artwork NOT stolen; Bakalar v. Vavra
Various Claims. Art transactional claims styled as RICO; fraud; conspiracy; breach of express/Implied warranty; contract, fiduciary duty; negligence; negligent misrepresentation; unilateral or bilateral mistake; De Sole et al. v. Knoedler Gallery, LLC et. al
American Alliance of Museums (AAM), Association of Art Museum Directors (AAMD); International Council of Museums (ICOM); guidelines on museum acquisition/deaccession governance; focus WWII and antiquities
U.S. State Attorney Generals Charities Bureaus regulate nonprofits; focus unauthorized sales of restricted gifts
Museum trustees focus on their fiduciary duty; Sarbanes-Oxley-like standards for nonprofits; fiduciary exception to attorney-client privilege, United States v. Jicarilla Apache Nation (2011)
City of New York Auctioneer Rules; require written consignment in which consignor warrants title and indemnifies auctioneer against title defect
Jenack v. Rabizadeh; raises question of whether auctioneer must disclose name of consignor to public/buyer to meet Statute of Frauds; issues on appeal
Auction houses GENERALLY –
1. Reserve right to rescind sale in future without time limitation if concerns about title/authenticity (prevents finality to transaction); effectively overrides-circumvents express/implied warranties
2. Offer third-party guarantee/irrevocable bid (denoted in catalogue); creates unfair advantages when guarantor bids on artwork guaranteeing
Art Dealers Association of America (ADAA): guidelines on code of ethics and professional practice
Pre-emptive rights in bills of sale; right-of-first refusal; right of first consignment; generally, enforced if in writing; Robin v. Zwirner; Kaikai Kiki v. Cerulean
Undisclosed dual/triple agency, Perlman v. Gagosian
IRC §1031 like-kind art exchanges with dealers acting as Qualified Intermediary, Holzer v. Stoyanov
New York City “truth in pricing” laws largely ignored; few galleries post prices; lax enforcement by consumer affairs officials
The Art Fund Association LLC is developing best practices guidelines for art fund industry
Conflicts of interest between fund management/founders and true third-party investors; hard to show arms-length, unbiased transactions (non-insider trading), integrity of financials
Qualified Audit Reports due to unresolved issues (title, value)
Directors & Officers, Errors & Omissions liability for failure to manage art assets properly including inadequate disclosure of market risk factors
Canadian, publicly-traded Sino-Forest Fund: $600M collapse/de-listing, 80% value drop because of defective title to forestry assets, $35M internal investigation (2011)
“The growth of the art market and its infrastructure in the last 10 years is fuelling an increasing interest in art as an asset class, which means we now can start talking about the early stages of an Art and Finance industry. . . . The art market is going through a ‘major transformation’.”*
Art lending is being curtailed because of “valuation and difficulties in assessing the downside risks;” institutional investors are “hesitating “[due to] lack of liquidity and valuation issues.”
Fundamental challenge: “[the] unregulated nature of the art and collectibles market.”*
* Source: Deloitte Global “Art and Finance Group,” Luxembourg, December 2011
Self-discipline in self-regulation key; transactional standards will support transparency in and global transformation of art market
Proposed art Transactional Standards –1. Close art transactions in escrow 2. Seek disclosure of multi-agency representation3. Conduct deep due diligence4. Cure defects before sale5. Rely on independent QIs for 1031 exchanges (not dealers)6. Require title insurance to mitigate risk and enhance value
Preserve confidentiality tradition; disclose stakeholder identities only to neutral, third-party (title insurer)
Safeguard art scholarship opinions (experts and artist foundations fearful of litigation); proposed New York law seeks to protect authenticators against lawsuits