Page 65 - AC-3-1

Arts & Communication Legal risks and art exhibition contracts

required to comply with it. Both the Brussels System and only contract disputes and other disputes over property
12
the Lugano Convention have adopted similar provisions. rights and interests can be arbitrated, whereas disputes
In judicial practice in Mainland China, if the agreement over marriage, adoption, guardianship, child support,
6
on jurisdiction does not use non-exclusive terms, Chinese inheritance, and administrative issues are not subject to
courts generally recognize the exclusivity of the jurisdiction arbitration. This reflects Mainland China’s stand on the
clause. Conversely, U.S. courts generally respect the parties’ term “commercial.”
choice, but the selection clause cannot deprive other courts The contract for an art exhibition is a general
of jurisdiction. Therefore, U.S. courts may determine contractual relationship. According to the principle of
jurisdiction based on whether the choice is “unreasonable” autonomy, an agreement can be made either in the form
or “unfair,” potentially finding the clause invalid. 9
of an arbitration clause in the contract or in a separate
Another issue is the specificity required in a court arbitration agreement (which can be made before or after
selection clause. The Convention allows for both a general the dispute arises). Similarly, the validity of the arbitration
designation of a country’s courts (e.g., “the Chinese courts clause is independent and not affected by the validity of
have jurisdiction”) and a specific designation of particular the contract. However, there is controversy over situations
courts within a country. The Brussels System and Lugano where the parties agree to both a court jurisdiction clause
13
Convention require designation to a specific court or and an arbitration clause. Internationally, most views
courts. China’s relevant provisions suggest that the choice favor the priority of the arbitration clause, whereas in
of the court should be specific to a particular court within Mainland China’s judicial practice, such arbitration clauses
a country, whereas, in the U.S., it is sufficient to indicate are considered invalid. Finally, a valid arbitration clause
6
only “the place of the action,” which could mean a state or between the parties precludes the jurisdiction of a national
foreign country. 814 court when it exists.
Similar to the choice of lex causae, the validity of a court
selection clause is independent of the contract itself and 3. Nature of the contract and liability
will not be affected by its invalidity. Like a “contract of the The reason for taking the choice of the lex causae
action,” it should be judged by the lex causae if the parties seriously is that once a valid contract has been signed, it
have chosen one in the contract. 6 will have binding force under the applicable law, thereby
International commercial arbitration is another essential constraining the behavior of the parties. This directly affects
means of resolving international disputes, offering advantages the rights and obligations between the parties and their
such as neutrality, confidentiality, autonomy, and finality, corresponding responsibilities. When there are differences
but it also comes with high costs. The UNCITRAL Model in relevant legal provisions across countries, the parties
Law on International Commercial Arbitration interprets can choose to apply the law most beneficial to them, and
“commercial” broadly, encompassing all commercial they should consider this during contract signing.
relationships, whether contractual or non-contractual. 3.1. Nature of art exhibition contracts
However, China, which acceded to the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards Art exhibitions can be non-profit and for public welfare
in 1986, has made a commercial reservation, limiting or paid and commercial. When organizing exhibitions
the application of the Convention to disputes arising on a paid basis, there is no significant difference among
from contractual and non-contractual commercial legal countries; such exhibitions are generally recognized as
relationships. Articles 2 and 3 of the Arbitration Law of leasing agreements. Depending on the specific commercial
1
the People’s Republic of China also explicitly state that behavior, the leased object can be either the artwork or the
exhibition venue. For leasing contracts, the general view in
12 The countries include: Austria, Belgium, Bulgaria, Croatia, Mainland China is that leasing is a consensual contract. 10-12
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Article 707 of Mainland China’s Civil Code specifically
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, stipulates that leasing contracts exceeding 6 months
Luxembourg, Malta, Mexico, Montenegro, Netherlands, must be in written form; otherwise, they are deemed
Poland, Portugal, Romania, Singapore, Slovakia, Slovenia, indefinite contracts. Taiwan also views the lease contract
Spain, Sweden, Ukraine, and the United Kingdom of Great
Britain and Northern Ireland. as consensual, stipulating that the term of real estate leases
13 See Article 23(1) of Brussels I Regulation (2001); Article 25 exceeding 1 year must be in written form, or else the
13
of Brussels I Regulation (recast) (2012); and Article 23(1) of contract will be converted into an indefinite contract. In
Lugano Convention (2007). Germany, the lease for using movable assets can be made
14 See Restatement (Second) of Conflict of Laws of the U.S., §80. verbally. 14

Volume 3 Issue 1 (2025) 5 doi: 10.36922/ac.2881