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Arts & Communication Legal risks and art exhibition contracts

(lex causae), which is the approach adopted by most was adopted in 2005 and entered into force in 2015. The
European countries; the other is to determine it based contracting parties include most EU countries, the UK,
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on the local law of the court, as practiced in Mainland Singapore, and others. Article 1 of the Convention allows
China. parties to select a court for civil and commercial matters,
Although the parties to a contract have the freedom but it excludes certain subjects through an enumerated
to agree on the applicable law, this does not mean list, such as consumer contracts, employment contracts,
they can make agreements to evade legal regulation. real estate rights and leases, and intellectual property
Internationally, exceptions include the preservation of rights (except copyrights and neighboring rights), as
public order and the direct application of mandatory well as infringement of intellectual property rights not
provisions. In the context of art exhibitions, attention arising from contractual relationships. China signed the
should be given to the mandatory regulations of each Convention in 2017, although it has not yet come into
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country. Article 4 of PRC’s Law on Application of Laws force, as is the case with the U.S. Paragraph 1 of Article
stipulates the direct application of mandatory provisions, 529 of the Interpretations of the Supreme People’s Court on
while Article 8 of PRC’s Interpretation of the Law on the Application of the Civil Procedure Law of the People’s
Application of Laws (I) explicitly lists five categories, Republic of China stipulates that parties to a foreign-related
with a final miscellaneous clause. The Law of the People‘s contract or other property dispute may choose a foreign
Republic of China on Protection of Cultural Relics stipulates court for jurisdiction. However, Chinese law requires that
that state-owned and non-state-owned precious cultural the foreign court selected by the parties have a practical
relics cannot be traded, cultural relics are prohibited connection to the dispute, meaning it does not recognize
from leaving the country by state regulations cannot be a completely neutral third-party court as the jurisdictional
exported, and non-state-owned immovable cultural relics court.
cannot be transferred or mortgaged to foreigners. These In the U.S., since the “Zapata” case, courts have
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all fall under the scope of the miscellaneous clause and widely recognized the prima facie validity of court
are considered mandatory norms that cannot be excluded selection clauses in international contracts. Article 80
by the parties. Notably, in May 2023, the National of the Restatement (Second) of Conflict of Laws states
Cultural Relics Administration revised and released a that unless it is unjust or unreasonable, the parties’
list of restricted overseas travel works by artists who died agreement on the venue for the hearing shall be given
after 1911, covering eight categories such as calligraphy effect; unlike Mainland China’s law, this does not require
and painting. According to the scope of cultural relics a practical connection. The Brussels System and the
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protection defined in Article 2 of the Law of the People‘s Lugano Convention in the EU allow parties to choose a
Republic of China on Protection of Cultural Relics, these court freely without the need for a practical connection.
works should also be considered cultural relics prohibited In addition to practical connections, some countries
from leaving the country. establish exclusive jurisdiction over certain types of
cases, and parties are not permitted to exclude this
2.2. Choice of dispute resolution methods jurisdiction through agreement. Articles 34 and 279 of
If parties have a dispute over a contract, it may involve the Civil Procedure Law of the People’s Republic of China
litigation and arbitration. Litigation is related to a and Article 16 of both the Brussels System and Lugano
country’s jurisdiction and is considered an expression Convention provide for exclusive jurisdiction.
of national sovereignty. Therefore, the jurisdiction of a After selecting a court, there is the issue of exclusivity,
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case is mainly determined by domestic law. However, in that is, whether a foreign court chosen by the parties can
civil litigation, most countries still adhere to the principle exclude the jurisdiction determined by domestic law.
of autonomy in private law, allowing parties to negotiate Article 3 (b) of the Convention stipulates that unless
and choose a competent court for the case or agree on otherwise expressly agreed, an agreement that designates
arbitration, thereby excluding the jurisdiction of national a court (or courts) of a contracting party shall be deemed
courts. an exclusive choice of court agreement. The Convention
The key international instrument for choice of court has come into force in most EU countries, and they are
is the Hague Convention on Choice of Court Agreements
(hereinafter referred to as the “Convention”), which 10 See Convention of 30 June 2005 on Choice of Court
Agreements, website: https://www.hcch.net/en/instruments/
9 See Regulation (EC) No 593/2008 of the European parliament conventions/status-table/?cid=98.
and of the council of 17 June 2008 on the law applicable to 11 See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.
contractual obligations (Rome Ⅰ), L.177, 4.7.2008, p 11. Ct. 1907, 32 L., Ed. 2d 513.

Volume 3 Issue 1 (2025) 4 doi: 10.36922/ac.2881