Meet the Innovators: Aaron Taylor, Barrister

Aaron is a commercial barrister with a particular interest in the law relating to art and cultural property, and in civil fraud and financial crime. He is currently writing a book about fraud, forgery and financial crime in the art market, a subject on which he also lectures at the LSE.

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Tell us about your background as a barrister?

I started out as a historian – my interest was in the cultural history of Europe in the long eighteenth century, which was quite good training for some of the provenance issues that come up in art disputes. From there, I studied law, and went on to become a member of Fountain Court Chambers, a set of commercial barristers.

Much of my practice involves cross-border civil fraud claims. Over the last few years, I’ve worked on cases involving the recovery of hacked crypto assets, allegations of corruption against (overseas) government ministers, the allegedly-fraudulent supply of commercial aircraft, breaches of trust by offshore fiduciary services providers, proceeds of crime issues, and all sorts of other things.

One of the best aspects of life at the Bar (most barristers are self-employed) is that it gives you the scope to pursue your own interests. For me, that means the law relating to art and cultural property. I’ve acted in some very interesting art disputes (involving fraud, authenticity, title, and so on), and I write about and lecture on various aspects of art law. Most recently, I published a paper on the much-discussed issue of resale restrictions in contemporary art contracts (spoiler: I think that most sensibly-drafted restrictions will be enforceable in English law).

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You are interested in the legal position of authentication experts and artists' foundations. How did that interest come about?

One of the issues that I’ve come across both in my practice and through writing about fakes and forgeries is the central role of experts in the art market. In many cases, there’s a small handful of experts – or perhaps a single foundation or board – with de facto power to declare a work authentic or inauthentic in the eyes of the market. The financial implications of that decision can be enormous.

The great majority of experts exercise that responsibility with absolute integrity, care, and diligence. It is really important that the law protects their independence in doing so, and their ability to express their views without fear of the consequences for those who might not like their conclusions. Several artists’ foundations (mostly in the USA) have closed down in the face of the threat of litigation, meaning that valuable expertise has been lost, and the market stuck in limbo. That’s not a good result for anyone.

On the other hand, we shouldn’t shy away from the risk some experts might carry out their work without proper care – or, more importantly, in bad faith. That can be the result of a financial interest in the outcome of their work (for example, a stake in the sale price), or a personal or professional conflict of interest (such as a dispute with another expert). This can result in both the over-authentication of fakes and the under-authentication of good works; most people who work in the art world will be aware of examples – or at least allegations – of both.

From my perspective as a lawyer, the interesting question is: how well does the law balance these interests? The short answer is that the general law is reasonably good (experts are quite well protected if they act honestly and with reasonable care, for example) but it is something of a blunt instrument for governing a market as complex as the art market.

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You have said that you think the solution to some of these issues might be self-regulation by the market. Why is that?

Since the general law is not perfectly suited to governing all the nuances of the art market, the next question is whether a more targeted legal framework would be any better.

To my mind, the most fruitful route forward lies in self-regulation. The art market is built on trust, and its leading participants have every reason to work together to develop and adopt standards of best practice. Rather than being imposed by non-specialist lawmakers, these standards should come from the market, and can be refined based on collective experience. This does not need to have the power of law to be effective; a well-written code of conduct can come to embody the standards expected by the market, to which experts will have to hold themselves in order to be trusted and relied upon.

I’m currently working on a draft code of conduct for authentication experts and artist foundations/boards, which will, I hope, be widely shared, discussed, and fine-tuned over time. It starts with a general statement of principle: that an expert must exercise their judgement independently, honestly, and in good faith, and in a manner that is not arbitrary, capricious, or irrational. That is quite a familiar standard in the law, since it’s essentially the same standard to which we hold public officials when carrying out their public duties. The code then enumerates various  more specific obligations which drive towards than general principle – such as an expert’s obligation not to accept a fee which is contingent on their conclusion, to declare any conflicts of interest, and (at least usually) to give reasons for their decision.

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Do you think blockchain technology can help alleviate some of these issues?

Yes, absolutely. In the case of new works of art, we can spare future generations a huge number of potential problems by creating an immutable record of ownership stretching back to the artist. On the secondary market, anything we can do to protect the integrity of future transactions, and if possible to embed standards of conduct, will be very welcome.

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What is your favourite museum or art gallery to explore?

I adore the Courtauld Institute. I’m a bit of an Impressionism nut, and the permanent collection there is brilliant. (It also helps that it’s a short walk from Chambers.) We are always spoilt for exhibitions in London. Some of my favourites over the last few years have been ‘After Impressionism’ at the National Gallery, ‘Making Modernism’ at the Royal Academy, and Cézanne at the Tate Modern.

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What are you working on which is energising you for 2024?

I’m currently writing a book about fraud, fakes, and financial crime in the art market. It’s a fascinating subject, and there’s a wealth of interesting stories and legal issues to think about. I’ve had the pleasure of interviewing a number of people who work in the art market – gallerists, auction house specialists, art lawyers, journalists, law enforcement officials, and so on – in the course of my research. I’m really excited to get stuck into some more writing this year, in between a couple of trials.

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Which artists are on your mind at the moment?

One of my interviewees for the book was the art dealer James Butterwick, an expert in Ukrainian and Russian/Soviet Avant-Garde art. The market for those works is beset by authentication issues, and James has been at the forefront of the effort to clean it up. Through our discussions, I have become quite obsessed with this extraordinary period of art history, and the work of artists like Natalia Goncharova, Alexander Bogomazov, Kazimir Malevich, El Lissitsky, Sonia Delaunay, and Aleksandra Ekster.

One highlight of 2023 was making a pilgrimage to Madrid to see ‘In the Eye of the Storm’, an incredible exhibition of Ukrainian modernism. I’m thrilled it’s coming to the Royal Academy in London this summer – it is unmissable.

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