Partner Megan Noh recently co-authored an article discussing the application of force majeure and related doctrines in the context of art transactions in New York. Her co-authors discuss parallel doctrines under which parties to art transactions may seek to excuse non-performance under English, Italian, and French law, relevant to the increasingly-international art market, with hubs in London, Milan, and Paris.

The article, published by Gardner Leader and co-authored by Noor Kadhim and Leonardo Carpentieri, delves into the global performance of contracts in the increasingly vulnerable climate. Given that art transactions most often involve transportation of art across borders in addition to physical inspection, the market faces particular vulnerability following the new government social distancing restrictions.

Noh hones in on the changes that the New York market has encountered, as the COVID-19 crisis has continued to unfold. "Traditionally, prospective purchasers have often inspected artworks in person, including for qualities that may not translate well through photographic reproduction....high-value artwork is also subject to careful logistical arrangements (typically culminating in collection by or delivery to the purchaser as part of a 'closing')." Noh asserts that the "unavailability of physical access to works of fine art has stymied these long-established practices, in turn creating obstacles to the performance of contractual obligations."

According to Noh, as a result of the abrupt closures by the most prominent storage/shipping vendors who have temporarily shuttered their New York operations, "...parties transacting art have increasingly turned to the existing FM provisions in their contracts—or sought to introduce new such provisions into in-progress deals—to provide relief from the impact of, or build in flexibility around, the dynamic circumstances posed by the ongoing pandemic."

To read the full article, click here.

Noh will be participating in a webinar to discuss the issues raised in this article on Friday, April 24th. For more information on this webinar, click here.   

Originally published 16 April, 2020

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