In the case of two parties located in different countries – say the artist in England and a gallery in the USA – a vital term and condition to include in contracts is: which law/courts of which country the parties agree will be used if there is a legal dispute between them in future. This facet of a business contract is usually called the choice of governing law.

Given that there is always a risk of not being paid (properly or at all) and/or the physical work not being sold or being lost/stolen/damaged, artists should consider whether it would be sensible to choose the law/courts of the country where the gallery is based  – because the gallery’s assets, including the consigned works, will be located there. Such a choice has the disadvantage of requiring an artist based in England to pay lawyers in a different country to make their claim there. On the other hand, if English law/courts were chosen, a claim would first have to be made in England and, if it succeeded, then make a further claim/application to that English court to transfer the judgement/award to the USA courts for enforcement against the gallery, whose assets were located there.

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.