‘A misattribution is an erroneous attribution: the error lies in the wrongful identification or appreciation of the object. With sleepers, the misattribution must also devalue the art object. Essentially, three types of erroneous and undervalued attributions produce sleepers … [i] attribution of the artwork or antique to a lower valued creator instead of the actual higher valued creator … [ii] The incorrect dating of the object … [iii] Incorrect provenance or ownership history.’ [The Sale of Misattributed Artworks And Antiques At Auction (2016), by Anne Laure Bandle, page 8].
In order to determine the applicable law, it is first necessary to classify the legal issue in dispute (i.e. contract, tort, moveable or immovable property).
The instruments that currently determine applicable law, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II), have been implemented in UK domestic law, and continue to apply post-Brexit.
Articles 3 and 4 of Rome I lay down the basic rules, i.e. that a contract is generally governed by the law chosen by the parties (‘choice of governing law’).
A choice of governing law may be expressly agreed or be clearly demonstrated by the terms of a contract, or from the circumstances of a case.
In the absence of a choice of law, the law of the contract will be that of the habitual residence of the seller of goods, or the provider of the services in dispute.
There are exceptions to this rule, e.g.
- where a contract relates to immoveable property the Lex Situs rule will apply;
- if the sale occurred at auction, the law of the state where the auction took place will apply); or
- if the contract is manifestly more closely connected with another state, the law of that state will apply.
Further exceptions apply to specific types of contract, e.g. in a consumer contract the law of the consumer’s habitual residence will generally apply.
The choice of law in English tort matters is governed by the Rome II regulation. Under article 4 of Rome II, the law applicable to a noncontractual obligation arising out of a tort will be the law of the state where the damage occured. This will be irrespective of the state in which the event giving rise to the damage occurred or where indirect consequences of the tort are suffered.
In an action claiming damages for loss of or damage to e.g. a painting, the applicable law will be that of the state where the loss or damage was sustained. However, where both parties to the dispute have their habitual residence in the same state at the time the damage occured, the law of that state shall apply, and where the tort is manifestly more closely connected with another state, the law of the other state will apply.
Under English Law, in a contract or tort action ‘in personam‘ (i.e. against a person), the English court has residual jurisdiction in three situations:
(i) where the defendant has been served with the statement of claim whilst in England;
(ii) where a person who might otherwise be excluded, submits to the jurisdiction; or
(iii) if the case comes within CPR, r. 6.20, where in the discretion of the court, leave is granted for service of proceedings outside the jurisdiction.
Since Brexit, the doctrine of Forum non conveniens also applies.
The EU-UK trading cooperation agreement contains nothing to replace the previous civil Justice framework. Acceding to the Lugano Convention requires unanimous consent from all parties, including the EU, and the EU has declined, stating:
‘The Lugano Convention applied to the United Kingdom of Great Britain and Northern Ireland (“the United Kingdom”) until 31 January 2020 via its EU membership. For the duration of the transition period, which ended on 31 December 2020, the other Parties to the Lugano Convention had been notified by the EU that the United Kingdom was to be treated as a Member State for the purposes of international agreements to which the Union was a Party, which covered the Lugano Convention. On 8 April 2020, the United Kingdom applied to accede to the 2007 Lugano Convention in its own right. This application was submitted to the Depositary of the Lugano Convention . The United Kingdom proposed to extend the application of the Convention to Gibraltar. By a letter of 14 April 2020, the Depositary officially transmitted the application and the related information to the Lugano Contracting Parties, including the European Union, represented by the European Commission. In view of the nature of the Lugano Convention (see below, section 2.1.) and the existing framework of judicial cooperation with third countries (see below, section 2.2.), the Commission considers that the EU should not give its consent to the accession of the United Kingdom to the Lugano Convention.’ 1_en_act_en.pdf (europa.eu)
Therefore, ‘for cases commenced prior to 1 January 2021, the Lugano Convention and Recast Brussels Regulation will continue to apply. For cases commenced after 1 January 2021, if there is an exclusive jurisdiction agreement and the chosen court is a contracting party to the Hague Convention, the 2005 Hague Convention will apply. In the absence of this, decisions on jurisdiction and enforcement will fall to domestic law.’ [‘Brexit and the art market’, talk by Rudy Capildeo of Charles Russell’ Speechlys to the Institute of Art, 6 February 2021].
‘To date little attention has been given to the [Hague] Convention given itslimited application. However, now that the Brussels Regime no longer applies, and unless/until the EU consents to the UK’s accession to the Lugano Convention, the Hague Convention provides a means by which English judgments can be enforced within the EU. However, there are potential issues:
· It only applies to the establishment of jurisdiction and the enforcement of a judgment that results from an exclusive jurisdiction agreement (and judgment does not cover interim measures of protection such as freezing orders). It can be extended to apply to judgments flowing from a non-exclusive jurisdiction clause, but as yet no contracting states have exercised that option.
· The Convention arguably does not apply to asymmetric clauses (where one party is required to bring proceedings in one jurisdiction exclusively, while the other party has the option to bring proceedings in any competent jurisdiction). The definition states that it covers only those agreements that designate the courts of one contracting state to the exclusion of any other courts. The Explanatory Report (paragraph 105) confirms that in order to be covered by the Convention, the agreement must be exclusive irrespective of the party bringing the proceedings. Asymmetric clauses are therefore very likely to fall outside the definition of exclusive jurisdiction clause.
· The UK was previously a signatory via its membership of the EU, but has now become a signatory in its own right. There is, however, some uncertainty as to the date the Convention will be regarded as having entered into force in the UK: the date of EU ratification (1 October 2015), or the date on which it entered into force in the UK in its own right? This is an important distinction as Article 16 provides that the Convention applies only to jurisdiction agreements concluded after its entry into force in the state of the chosen court. In its accession declaration, the UK states that it considers that the Convention entered into force for the UK on 1 October 2015 and that the UK is a Contracting State without interruption from that date. However, the EU Commission appears to be taking the opposite position, stating that the Convention will only apply to exclusive jurisdiction agreements entered into on or after 1 January 2021. It is possible that the issue of the UK’s status under the Hague Convention, so far as the EU courts are concerned at least, may have to be resolved by the CJEU.
· There is also some uncertainty as to whether, if there is no party domiciled in the UK or other non-EU Hague contracting state, the EU courts can stay proceedings or decline jurisdiction to give effect to an exclusive jurisdiction clause in favour of an English or other non-EU court, unless the non-EU proceedings are commenced first. In this situation, the Recast Brussels Regulation appears to takes precedence over the Hague Convention and case law on this issue under the Regulation is inconsistent.’ Dispute resolution: what now? | Ashurst