Boodle Hatfield’s arts team were joined by XXIV Old Buildings in late September to discuss current issues in art litigation

Tim Sherwin began by commenting on recent art cases, including those involving cryptoassets, and the conflict of laws. He explored the gateway available to claimants for service out of the jurisdiction and in particular discussed the wording in the CPR which says "the subject matter of the claim relates wholly or principally to property within the jurisdiction", focusing on the application of "relates" and the limits of "jurisdiction".

Next, Edward Cumming KC discussed his observations on the development of non-resale clauses and their enforceability when restricting the re-sale of artworks. He commented on common restrictions, such as not having a right to sell the art at all, an agreed period of non-resale, a right of first refusal and a limit on the mode of re-sale. He then raised pertinent questions in light of these such as who is the purchaser (and the potential application of the Consumer Rights Act 2015 as a result), encumbrances under the Sale of Goods Act 1979 and quantifying damages and loss.

Sarah Bayliss also discussed recent developments in cryptoasset cases, particularly in relation to the recent injunctions regarding NFTs in London and Singapore. She focused on the "Boss Beauties" case of Lavinia Osbourne v (1) Persons Unknown (2) Ozone Networks and the High Court's ruling that "there is at least a realistically arguable case that NFTs are to be treated as legal property". Sarah observed that whilst this is a significant step given the legal uncertainties about NFTs all over the world, courts still have a way to go by way of fully admitting NFTs into the "category of property".

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