The fact that an artwork is in France does not necessarily mean that every dispute concerning it belongs before a French court or is governed by French law. International art disputes require separate answers to two questions: which court has jurisdiction, and which law governs each issue?
Jurisdiction should be analysed before the merits
Within the EU, the Brussels I Recast Regulation provides the principal framework for jurisdiction in civil and commercial matters. The general rule is jurisdiction in the Member State of the defendant’s domicile, but the Regulation contains important special rules.
In contractual matters, Article 7 may direct proceedings to the place of performance; for sales of goods, the place of delivery can be particularly significant. In tort, jurisdiction may lie where the harmful event occurred or may occur. Article 25 also gives substantial effect to valid agreements choosing the courts of a Member State.
These rules can matter directly in art transactions. A gallery may be established in one country, an auction take place in another, delivery occur in a third and the work later move again. The transaction file should therefore be read for both forum and governing-law clauses before a claim is framed.
Cultural objects receive specific attention in the EU jurisdiction rules
The Brussels I Recast Regulation also contains a special jurisdiction rule for certain civil claims seeking recovery of a cultural object based on ownership: proceedings may be brought where the cultural object is situated when the court is seised, subject to the scope of the provision.
That rule should not be confused with the substantive ownership rules themselves. For a broader introduction to title disputes, see Art Provenance and Ownership Claims in France and Buying Stolen Art in Good Faith: What Does French Law Say?.
The governing law of the contract is a different question
For contractual obligations falling within its scope, Rome I permits parties significant freedom to choose the governing law. Where they have not done so, the Regulation provides default rules that depend on the type of contract and circumstances.
An art sale, consignment, agency relationship, advisory mandate or expert engagement may therefore be subject to a law that differs from the jurisdiction in which proceedings are brought. The governing-law clause should be analysed together with the forum clause rather than assumed to follow it automatically.
Non-contractual claims may engage Rome II
Misrepresentation, negligence, professional liability and other non-contractual claims may engage Rome II. The applicable law will depend on the legal characterisation and relevant connecting factors.
This becomes important where a claimant pleads both contract and tort theories against different defendants — for example, an auction house, seller, expert and intermediary — because the claims may not all follow the same choice-of-law analysis.
Ownership of the artwork must be analysed separately
Neither a choice-of-law clause for contractual obligations nor a forum clause necessarily determines proprietary title to a tangible movable object. A dispute over who owns the artwork may require a separate conflict-of-laws analysis based on the circumstances and locations of relevant transfers.
This is especially important for artworks that have moved through several countries. French rules such as possession vaut titre may be relevant, but only after determining whether French property law governs the issue being decided.
Why early classification matters
International art disputes often become unnecessarily complex because “the dispute” is treated as a single block. A more reliable method is to separate contract, tort, ownership, procedure and enforcement, identify the applicable instrument for each, and then design the litigation strategy.
That exercise can also reveal that proceedings, evidence measures or enforcement steps may need to be coordinated in more than one country.
About the author
Alexis Fournol, Attorney at the Paris Bar and Partner at Fournol & Associés, advises and represents French and international art-market professionals, collectors, experts and institutions in disputes involving art, cultural property, authenticity, ownership, customs and related criminal or regulatory issues.
How Fournol & Associés can assist
Fournol & Associés assists foreign lawyers and international clients with French jurisdiction and conflict-of-laws questions arising from art sales, auctions, authenticity disputes, ownership claims and other cross-border matters. The Firm can provide a discrete French-law analysis or conduct the French proceedings within a wider international strategy.
Fournol & Associés regularly acts as French counsel within international legal teams. Foreign law firms may instruct the Firm for a defined French-law issue, for proceedings in France, or for the French component of a wider multi-jurisdictional dispute. The Firm works in English and coordinates closely with lead counsel, experts and other advisers.
The Firm also assists clients in Brussels, particularly in art-market matters. Depending on the nature of the matter, we may act directly or, in contentious proceedings, work alongside Belgian counsel where appropriate or required.
Related reading
- Art Market — French and cross-border art-market disputes
- Art Provenance and Ownership Claims in France — title and provenance in French-law disputes
- “Possession vaut titre” — the French movable-property rule and its limits
- Buying Stolen Art in Good Faith — recovery and good-faith acquisition under French law
Contact Fournol & Associés for a French-law or France/Brussels art-market matter.
This publication provides general information on French law and does not constitute legal advice. The applicable rules depend on the facts, relevant agreements, jurisdictions involved and procedural posture of each matter.
Frequently Asked Questions
If a contract chooses French law, must the dispute be heard in France?
No. Governing-law and jurisdiction clauses answer different questions. Their validity and scope should be analysed separately.
If an artwork is physically in France, do French courts automatically have jurisdiction?
Not in every dispute. The location of the work may be highly relevant, and specific rules can apply to cultural-object recovery, but jurisdiction depends on the legal basis and applicable jurisdiction rules.
Can different laws govern different claims in the same art dispute?
Yes. Contractual obligations, non-contractual liability and proprietary title may require distinct choice-of-law analyses.
Why is this particularly important for auction disputes?
Auctions can involve a French sale process, foreign bidders, foreign sellers, cross-border payment and delivery, and contractual terms selecting a law or court. Each connecting factor may affect the analysis.
