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Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

[1].
I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration provision of the "Conditions of Sale" dated April 17, 2008 and applicable to the transaction from which this dispute arises, and having been duly sworn; and having heard and duly considered the respective proofs, allegations and submissions of Hans-Juergen Benze ("Claimant") and Antiquorum USA, Inc. ("Respondent") (collectively, the "Parties"); and the Parties having requested and agreed to a "reasoned award" herein; do hereby DECIDE and AWARD, as follows:

BACKGROUND

[2].
This arbitration arises from Claimant's purchase of a watch (the "Watch") on April 17, 2008 at an auction (the "Auction") conducted by Respondent, an auction house specializing in the sale of vintage watches.1 As facts jointly stipulated to by the parties: (i) the Watch was transferred to the possession of Claimant in April 2008; (ii) thereafter, on or about July 21, 2011, Claimant communicated to Respondent that he wished to return the Watch to Respondent for a full refund of the $166,800.00 that had been paid by Claimant, and (iii) Respondent declined to accept the return of the Watch for a full refund.

CLAIMS AND DEFENSES OF THE PARTIES

Claimant’s Claims

[3].
Claimant asserts against Respondent, in principal part, a cause of action for breach of contract/breach of the warranties contained in the Conditions of Sale, on the ground that the Watch he purchased from Respondent at the Auction is a counterfeit because its dial is allegedly not authentic. Specifically, Claimant asserts that he is entitled to relief because (i) the Watch sold by Respondent was an "intentional forgery"; (ii) Respondent provided in its Catalogue a false description of the Watch’s "origin, history, manufacture and physical characteristics" and failed to disclose that the Watch contained a forged or replaced dial; (iii) the Catalogue falsely claimed that the Watch dial was "in perfect condition" and that the Watch as a whole was in "exceptional" condition; and (iv) Respondent refused to refund to Claimant the amount of $166,800.00. As a result, Claimant seeks an award of (a) damages in the amount of $166,800.00, representing a full refund of the purchase price of $140,000.00 plus the auction commission of $26,800.00 which Claimant paid to Respondent (presumably, although it is not averred, in exchange for a return of the Watch to Respondent); plus (b) pre-judgment interest of no less than $85,066.00; plus (c) attorneys’ fees and costs of this arbitration.

Respondent’s Answer and Defenses

[4].
Respondent denies the allegations of wrongdoing asserted by Claimant, and further asserts, in principal part, the defense that Claimant’s claims are not actionable, as a matter of law, under the provisions of the Conditions of Sale and related Catalogue documents. Specifically, Respondent asserts that:

(a) The provisions of the Conditions of Sale do not guarantee that the Watch dial, being a component part of the Watch, are original to the Watch;

(b) The provisions of the Conditions of Sale warranting that the Watch is not an "intentional forgery" apply to the Watch, as a whole, and not specifically to the Watch dial;

(c) There can be no finding that the Watch is "an intentional forgery" because it is not alleged by Claimant that the Watch is an imitation made with the intention to deceive as to its maker (Rolex) or period (circa 1979), as opposed to Claimant’s allegation essentially that the Watch dial is a replacement part and not the Watch’s original dial;

(d) The Conditions of Sale expressly place the responsibility on Claimant for examination of the Watch prior to its purchase, and provide further that, as a purchaser, Claimant agreed to accept the Watch "As Is" at the time of purchase, without regard to any description in the Catalogue or otherwise, and without any responsibility on the part of Respondent for any errors or omissions in the Catalogue or other written material or oral statements, and further that no such written material or oral statement by Respondent shall be deemed to be a warranty, representation or assumption of liability;

(e) Respondent’s Limited Warranty contained in the Conditions of Sale guarantees only that the general description of the Watch as set forth in the Catalogue is true and correct as to matters relating to origin, history, manufacture and physical characteristics of such timepieces, and the detailed description of the Watch in the Catalogue, including the Catalogue’s "grading system", does not contain any statements alleged by Claimant in this arbitration to be untrue or inaccurate; and, in any event and notwithstanding Claimant’s allegations of misrepresentations or inaccuracies in the Catalogue description, the Conditions of Sale specifically state that Respondent is not responsible for any errors and omissions in the Catalogue or any advertisements or other written material; and

(f) The Conditions of Sale would further preclude any recovery herein by Claimant because Claimant is unable to satisfy the condition precedent to entitlement to a refund of the purchase price, Le., the Conditions of Sale require that in order to make a claim under the guarantee Claimant must return the Watch to Respondent immediately upon the discovery of any basis for such claim in the same condition in which it was purchased, and Claimant cannot comply with such condition because he acknowledges that, after the purchase, the Watch case was defaced (allegedly by Rolex) with the mark """ and thus is no longer in the same condition in which it was purchased.

[5].
In addition to its denials and assertion of affirmative defenses, Respondent seeks affirmative relief in the form of reimbursement by Claimant for Respondent’s arbitration and expert witness costs and for reasonable attorneys’ fees in this proceeding.

CLAIMANT’S PROOFS

Testimony of Claimant, Hans-Juergen Benze

[6].
Claimant, a German resident who speaks and reads English, testified that while not a watch expert, he has been a collector of Rolex watches for nearly twenty years, and regularly researches vintage watches on the internet and follows vintage watch blogs, including, prior to the Auction, discussions and warnings on the internet regarding allegedly inauthentic watches of the exact model of the Watch in question. Claimant testified further, among other things, that:

1. Claimant knew, prior to the Auction, Respondent to be a leading and reputable watch auction house that generally provided only limited warranties to those purchasing watches at auction.

2. Claimant was provided with the Catalogue in question by Respondent weeks in advance of the Auction, and he studied the catalogue intensively, including the Conditions of Sale and those portions of the Catalogue depicting and describing the Watch in question, noted by Claimant to be a rare Rolex watch with a black dial and yellow sub-dials (known by watch collectors and dealers as a "Paul Newman" Rolex). Claimant understood from studying the Catalogue that, among other things, he would be purchasing the Watch in "As Is" condition at the time of the Auction and that the purchase price for the Watch would be based on his own inspection of the Watch and not on anyone else’s. Claimant recalled reading in the Catalogue, in the Conditions of Sale, and in the other various Notices, numerous disclaimers and conditions regarding the purchase of the Watch, and he understood that he would be bound by them.

3. Prior to the Auction, Claimant personally attended in Geneva, Switzerland a preview of the Auction conducted by Respondent, in which prospective watch purchasers, including Claimant, were given the opportunity to inspect (or to have their agents inspect) the watches to be offered for sale at the Auction, including the Watch in question. Claimant personally inspected the Watch in question (he did not engage an agent or watch expert to inspect the Watch before the Auction with regard to authenticity, despite his prior awareness of a number of counterfeit "Paul Newman" Rolex watches) at the Geneva Auction preview wherein (i) he saw no irregularities with respect to the Watch; (ii) the Watch was in good condition as described in the Catalogue; (iii) he looked inside the Watch caseback and inspected the Watch dial through the crystal with a "Loop" and had no reason to doubt that the dial was not authentic; and (iv) he noticed marks on the inside of the Watch caseback indicating that the Watch had been previously serviced, but not the """ marks discussed below.

4. Following the Auction, Claimant took possession of the Watch and brought it back to Munich, Germany where it, for the most part, has been stored with the rest of his vintage watch collection and occasionally worn by Claimant.

5. In November 2010, Claimant decided to bring the Watch in for movement servicing (to preserve its movement fluidity) to an authorized Rolex watch servicer in Munich ("Bucherer") for forwarding to the main Rolex service center in Geneva.2 After roughly six months, Claimant was advised by Bucherer that Rolex would not service the Watch due to a question regarding the Watch dial’s authenticity, and the Watch was returned by Bucherer to Claimant on June 27, 2011, together with a purported copy of a letter dated February 1, 2011 (the "Letter", written in German under the purported letterhead of Rolex Deutchland) which, according to Claimant, stated that the Watch dial was "counterfeit". Claimant identified a handwritten portion of the Letter as having been written, in his opinion, by the manager of Bucherer known to him as Matheis ("Matheis").3

6. Claimant was also advised by Matheis at Bucherer, and Claimant subsequently reported to Antiquorum, that the Rolex service center in Geneva had placed an """ mark on the inside of the back of the Watch, purportedly to indicate to Rolex service centers that the Watch dial was believed by Rolex to be inauthentic and thus not permitted to be serviced. Claimant conceded that, due to the marking of the """ on the inside of the Watch, the Watch was thereafter no longer in the same condition as when he had purchased it at the Auction.

7. Roughly a month following the return of the Watch to Claimant by Rolex and Bucherer (and after taking vacation), Claimant reported to Respondent that Rolex had deemed the Watch to have a counterfeit dial and thus not to be serviceable, and had marked the inside of the Watch with an """. Claimant thereupon presented the Watch to Respondent (together with photos taken by Bucherer of the front and back of the dial, depicting the """ marking and also on the dial the stamp of "Singer", a dial manufacturer known by Claimant to have been an official Rolex dial manufacturer), and demanded of Respondent a refund of the full purchase price in return for the Watch. Said demand, after further discussions between the Parties, was rejected by Respondent.

8. Claimant conceded that he knows of no opinion, other than as purportedly expressed in the Letter, that the Watch dial is counterfeit (presumably, that is, other than that of Claimant’s expert, whose testimony is discussed below).

Testimony of Claimant’s Expert Witness (Edward S. Faber)

[7].
Claimant presented the testimony of Edward S. Faber ("Faber"), principal and founder of Aaron Faber Gallery in New York City. Mr. Faber testified, among other things, that:

1. Faber supervises the sale and purchasing of precious collectibles, largely European-made watches (including Rolex watches), including via auctions. Faber has written a text on American (not European) watches as well as numerous magazine articles, a newsletter, and website material, but he concedes he has not published any writings (other than internal company writings) in at least the last ten years.

2. Faber provides authentication services for customers, as an expert authenticator; however, Faber is not an official Rolex authenticator.

3. Faber is not certified as a watch expert by any court, nor does Faber possess any certification or degree with respect to watches, nor is Faber or Faber’s business a certified or authorized Rolex dealer or repair center, nor has Faber ever been employed by any watch manufacturer.

4. Faber states that he has handled "hundreds" of Paul Newman Rolex watches; however, Faber concedes that despite stating on direct examination that he has inspected the insides of dozens of Paul Newman Rolexes, he in fact has not done so.

5. Some counterfeit watches do not have hallmarks of inauthenticity, and it is Faber’s practice to "consult a colleague" or Rolex in Geneva if he is unsure whether a particular timepiece is counterfeit.

6. Faber has a longstanding professional relationship, including serving as a consultant and in a management position, with a company that has been engaged in litigation with Respondent, which relationship Faber states he failed to disclose in his expert CV because he believed it not to be germane to his service as an expert on Claimant’s behalf in this case.

7. Based on his own experience, Faber believes that the purported Rolex Letter is an authentic letter from Rolex, and that a letter from a watch manufacturer asserting that a particular watch is authentic (or inauthentic) is irrefutable; however, Faber concedes that because the purported Rolex Letter is numbered, there doubtless would be no difficulty in requesting and receiving from Rolex a verification of the authenticity of the Rolex Letter itself.

8. Faber once sold a Paul Newman Rolex watch to a customer which Faber later accepted return of after an inauthenticity claim by the purchaser,

9. Based on the purported Rolex Letter and on Faber’s inspection of the Watch dial (after the Watch was disassembled in his store by an associate, and not himself), Faber believes the Watch dial to be counterfeit.

10. Based on his examination of the Watch, Faber concludes that the Watch dial is not authentic, in large part because he believes that (i) the dial contains concentric circles which is definitive proof of inauthenticity, (ii) the dial is not an authentic "Singer’-manufactured dial, (iii) some letters on the dial are "puffed", and (iv) the finish of the dial paint is matte; however, Faber concedes that (i) he failed to state in his expert report that the existence of concentric dial circles is the definitive sign of inauthenticity, (ii) he did not state in his expert report that the dial is not an authentic Singer-manufactured dial, nor did he attempt to contact the Singer company to ascertain the authenticity of the Watch dial in relation to this case, (iii) Singer used many different printing batches for its dials, and (iv) Faber did not compare the finish of the Watch dial in this case with other Singer dials.

[8].
Claimant did not present any testimony by Mr. Faber in rebuttal to the testimony of any of Respondent’s witnesses despite the opportunity to do so.

RESPONDENT’S PROOFS

Testimony of Evan Zimmerman

[9].
Evan Zimmerman ("Zimmerman"), President and CEO of Respondent from 2008 to present, testified, among other things, that:

1. Respondent is an auction house specializing in vintage watches, including Rolex watches, which it sells at auction pursuant to (i) a detailed written catalogue which is reviewed by in-house and outside experts for adequacy of description and authenticity prior to distributing the catalogue to prospective purchasers and posting the catalogue on its website, and (ii) the previewing around the world of the auction items for viewing and inspection (inside and outside) by prospective purchasers and their agents, following and concurrently with inspection of items by Respondent’s own experts.

2. The Watch in question was part of a large vintage watch Auction conducted by Respondent, prior to which Respondent issued the Catalogue and previewed the watches (including the Watch in question) for viewing and examination around the world, including by Respondent’s own watch experts who deemed the Watch dial to be authentic.4

3. No watch expert who examined the Watch prior to, or at the time of or since, the Auction, whether an in-house or outside expert of Respondent, nor any other watch expert, apprised Respondent of any opinion that the Watch was not authentic.

4. Upon learning of Claimant’s claim that the Watch dial was counterfeit, Respondent, at Zimmerman’s direction, engaged Erich Lorenz ("Lorenz"), an independent consultant to Respondent who is a Rolex vintage watch expert, to render an opinion as to the authenticity of the Watch dial. Lorenz opined that the Watch dial was authentic and not a counterfeit, an opinion concurred with by Respondent’s in-house Rolex vintage watch experts who viewed the photos of the internal view of the Watch dial that had been provided by Claimant to Respondent.

5. Respondent rejected Claimant's demand for a return of the purchase price in exchange for the Watch on the grounds that (i) the Watch was no longer in the original condition as when it was sold to Claimant in 2008, i.e., due to the """ mark that had been made on the Watch, and further that the Watch was as a result devalued; and (ii) Claimant was not otherwise entitled to such refund.

6. Respondent has made no attempt to confirm whether or not the Rolex Letter is authentic. As to the assertion by the Claimant that the sole and last word regarding the authenticity or inauthenticity of the Watch belongs to the offices of Rolex, it is Zimmerman’s assertion that Rolex should not be deemed the sole and last word on such subject because, among other reasons, (i) poor or incorrect recordkeeping on the part of Rolex could render such authenticity opinion invalid; (ii) it is unknown whether Rolex employees rendering such authenticity opinion were in fact employed by Rolex at the time of the Watch’s manufacture; and (iii) it is possible that a vintage watch expert not employed by Rolex at the time of the rendering of such authenticity opinion might deliver a more valid opinion on such issue.

Testimony of Linda Gould

[10].
Linda Gould, currently Respondent’s Business Manager and in 2008 its Customer Relations representative, testified, among other things, that Claimant’s first demand for a refund of the purchase price from the Company due to an alleged counterfeit Watch dial was by email to her.

Testimony of Julien Schaerer

[11].
Julien Schaerer ("Schaerer"), employed by Respondent in Geneva, testified (as a fact, and not expert, witness), among other things, that:

1. In 2008, Schaerer assisted Respondent with the Auction, preparation of the Auction Catalogue, and the Auction preview in Geneva; however, he cannot state with certainty whether he examined the Watch in question in 2008 or otherwise discussed the Watch with anyone during the Auction preview.

2. Schaerer was present at the Geneva Auction preview in 2008, and can state that there was not raised any issue as to the authenticity of the Watch either at the preview or thereafter, other than Claimant in connection with this case.

3. Schaerer was shown photos in 2011 by Erich Lorenz ("Lorenz"), an independent consultant to Respondent, depicting the Watch in connection with Claimant’s claim.

4. An issue of authenticity regarding a Rolex watch would be brought directly to Rolex's Geneva office because that office would be the ultimate word on authenticity.

Testimony of Bruno Ayanian

[12].
Bruno Ayanian ("Ayanian"), employed as Chief Financial Officer of Respondent since 2010, testified, among other things, that:

1. Ayanian was directed by Zimmerman to investigate Claimant’s claim that the Watch contained a counterfeit dial.

2. Ayanian thereafter requested Lorenz, Scherer, and Etienne Lemmenger who is an employee of Respondent with expertise in vintage watches, to opine as to the authenticity of the Watch and the Watch dial, each of whom opined that the Watch, including the Watch dial, was authentic and not counterfeit.

Testimony of Respondent’s Expert Witness, Erich Lorenz

[13].
Respondent presented the testimony of Mr. Lorenz, who was engaged by Respondent to verify the authenticity of the Watch in question and to serve as its expert witness in this proceeding. Mr. Lorenz testified, among other things, that:

1. Lorenz was employed by Rolex USA in New York City for nearly forty years, roughly (i) from 1960 to 1983 as a technician servicing Rolex watches and serving customers, (ii) from 1983 to 1988 in charge of all Rolex service centers in the United States and serving as a Rolex spokesperson, (iii) from 1988 to 1990 as Assistant Vice President of Rolex USA, and (iv) from 1990 to 2000 as a special Rolex representative to law enforcement authorities, authenticating Rolex watches or otherwise identifying counterfeit Rolex watches.

2. During his employment at Rolex, Lorenz engaged in the process of authentication and identification of thousands of authentic and counterfeit Rolex watches, and also purchased vintage Rolex watches for use by Rolex for display purposes. Although Lorenz did not engage in the process of authentication or identification of authentic or counterfeit Paul Newman Rolex watches, as a Rolex technician he examined and serviced 50 to 100 Paul Newman Rolex watches. Lorenz does not recall if he has ever seen a counterfeit Paul Newman Rolex watch, although he has been told that they exist, nor is he aware of the existence of counterfeit Singer hallmark/imprints on Rolex watches.

3. Since 2001, after leaving Rolex’s employ, Lorenz serves as a vintage watch expert, examining watches, largely Rolex watches, with regard to their authenticity and to establish price estimates for auction and sale purposes.

4. On July 22, 2011, Lorenz was retained by Respondent to examine the Watch in question brought on that date by Claimant and his counsel to Respondent’s offices. Lorenz questioned Claimant as to the basis for Rolex’s alleged assertion that the Watch dial was counterfeit, to which Claimant responded that he was unable to get any information from Rolex in that regard.

5. In examining the Watch on that date, Lorenz disassembled and otherwise examined the Watch, including the dial, and determined that the "Singer" marking on the dial was known to him to be a genuine Singer marking at the time of the Watch’s manufacture and that the Singer mark on the dial was genuine. In Lorenz’ opinion:

(i) The printing on the dial was not reprinted or refinished, and it looked to him as it would have looked when seen by him as a technician in the 1970's when the Watch was manufactured;

(ii) The dial had not been removed or replaced, although he did not intend that such conclusion be stated in his expert report in this case;

(iii) Faber’s expert report as to the four main grounds for his finding that the Watch dial is counterfeit, i.e., with respect to (a) the dial ring being flat and not "step-down", (b) the letter "S" on the dial face appearing "blurry", (c) the sub-dial printing appearing "suspect", and (d) what appears as a matte black finish on the dial proving inauthenticity, was incorrect in each respect. Also incorrect was Faber’s oral testimony as to additional grounds for his finding, i.e., with respect to (a) the font style on the dial, and the appearance of a "high gloss" of lacquer on the face dial, as hallmarks of a counterfeit, and (b) the concentric circles on the sub-dials, and the Singer hallmark/imprint on the back of the dial, appearing inconsistent with an original Singer dial.

6. Lorenz was not aware of the contents of the purported Rolex Letter at the time of his examination of the Watch on July 22, 2011, and his opinion that the Watch dial is genuine is unchanged since learning of the Rolex letter because, among other things, (i) based on his years of experience with Rolex, he has known Rolex employees to make analyses and determinations in a hasty and superficial way; (ii) the lack of an actual signature on the purported Rolex Letter was inconsistent with his experience as a technician and official at Rolex USA in New York, where technicians generally signed such letters; and (iii) if Rolex had, in fact, analyzed the Watch dial and determined that the Watch dial was counterfeit, such analysis and determination would have to have been rendered by a person who was not qualified to perform such analysis and determination because such determination would have been incorrect.

7. In examining the Watch, with a "loop", at the Hearing, Lorenz notes some imperfections in the dial printing, similar to those in a photo of another Paul Newman Rolex dial shown to him, which other photo Lorenz had indicated might be a "reprint"; however, Lorenz ultimately opines that (I) the dial printing is, as a whole, good, and (ii) the chance that the dial was reprinted is "remote".

8. Notwithstanding the conclusion in his expert report to the effect that there is no question that the Watch dial is original to the Watch, Lorenz now acknowledges that such conclusion in his report may have been an overstatement; however, his opinion remains that the evidence, as a whole, shows that the Watch, including the Watch dial, is authentic and not counterfeit.

CATALOGUE AND CONDITIONS OF SALE

[14].
The Conditions of Sale, which each of the parties asserts governs the purchase and sale transaction between them, contained, among other things, the following relevant provisions:

A person’s participation in the auction and/or purchase of any lots constitutes an agreement to be bound by these Conditions of Sale as well as the rights and obligations arising there from [sic]. The Important Notices contained in this catalogue are deemed to be a part of these Conditions of Sale and are hereby incorporated in their entirety into these Conditions of Sale. Except as amended by Antiquorum in its sole and absolute discretion by the posting of notices or oral announcement at the auction or otherwise, these Conditions of Sale together with the Important Notices and the other contents of this catalogue constitute a full recitation of the terms and conditions under which sales are conducted and may not be amended except in a writing acknowledged by Antiquorum.

********

Before the sale, all lots may be examined at the exhibition times listed in the catalogue. All interested persons including, without limitation, bidder’s representatives and auction agents are understood to have examined all lots which they purchase and to accept them as they are at the moment of the fall of the auctioneer's hammer and not necessarily as described in any written material or oral communications. Those persons interested in purchasing any of the lots being sold shall be responsible for examining the lots personally to confirm their actual condition. All lots are sold "AS IS" according to their condition at the moment of the fall of the auctioneer's hammer. Buyer represents that the amounts bid for any lot are based solely on Buyer's own independent inspection and evaluation of that lot.... Antiquorum shall have no liability whatsoever relating to estimates of value attributed to the lots and all participants in the auction shall be responsible for reaching their own conclusions as to the value of the lots.... Antiquorum is [not] responsible for any errors and omissions in the catalogue or any advertisements or other written material.

********

Except for the Limited Warranty.... all lots are sold without any representations or warranties by Antiquorum... as to merchantibility, fitness for a particular purpose, rarity, importance, the correctness of the catalogue or other description concerning the author, maker, origin, period, age, attribution, authenticity, provenance, weight or condition of any object. No statement (whether oral or written, made in the catalogue, an advertisement, a bill of sale, posting, announcement or elsewhere) whether made by any employee or agent of Antiquorum shall be deemed to be a warranty, representation or assumption of liability. Antiquorum [has no] responsibility whatsoever for any defect in or deterioration of any lot.

********

Antiquorum guaranties for a period of five years from the date of Sale that (i) timepieces (watches, clocks and pocket watches only) and jewelry items are not intentional forgeries (unless they are described as such by Antiquorum) and (ii) that the general descriptions of the timepieces and jewelry items appearing in this catalogue are true and correct as to matters relating to the origin, history, manufacture and physical characteristics of such timepieces and jewelry items; provided, however, that unless otherwise specifically stated, Antiquorum does not guaranty that (i) all components of any timepiece are original to the timepiece... For purposes of this guaranty, the term intentional forgery shall mean imitations made with the intention to deceive as to the maker or period of the timepiece or jewelry item or the material used.... In order to make a claim under this Guaranty, [the] Buyer must return the timepiece or jewelry item to Antiquorum immediately upon the discovery of any basis for such a claim in the same condition in which it was purchased. If deemed appropriate by Antiquorum, a third party opinion will be obtained at the sole cost and expense of the Buyer. If the claim is determined to be valid by Antiquorum the sale will be rescinded and the purchase price and Buyer’s commission paid by the Buyer for the timepiece or jewelry item will be refunded to the Buyer. Antiquorum’s liability under this guaranty shall be strictly limited to the amount of such purchase price and Buyer’s commission.... The guaranty provided for above shall not apply if any one of the following conditions exists: (i) the catalogue description was, at the time of the publication of the catalogue, consistent with generally accepted opinions of specialists or experts in the relevant field.... Other than the limited warranty and guaranty provisions above, Antiquorum... make[s] no representations, warranties or guaranties regarding the lots sold hereunder.

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To the extent that any other information or provision set forth in this catalogue is inconsistent with the Conditions of Sale, the Conditions of Sale shall be controlling.

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This Agreement shall be interpreted and enforced according to the substantive laws of the State of New York.... At Antiquorum’s sole discretion, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules (such arbitration to be held in New York, New York before a single arbitrator by the AAA, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof)....

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ISSUES TO BE DECIDED

[15].
The principal issues to be decided in this arbitration are (i) whether the Rolex Watch sold at the Auction by Respondent to Claimant contained a counterfeit dial, or was otherwise inauthentic, at the time of sale; and (ii) even assuming, arguendo, that Claimant is able to prove such inauthenticity by a preponderance of the competent evidence, whether Claimant is entitled to a remedy herein against Respondent or, on the contrary, would any such remedy be barred by the provisions of the Conditions of Sale.

FINDINGS OF THE ARBITRATOR

[16].
The Arbitrator, following a three-day evidentiary hearing during which he heard and considered extensive testimony from both parties and their respective expert witnesses (including numerous exhibits), oral argument by counsel, and the submission by the parties of pre-hearing and post-hearing briefs, does conclude and find, based on the credible evidence and argument, as follows:

1. Claimant has not met his burden of proof by a preponderance of the evidence that the dial on the Rolex Watch (or the Watch as a whole) was counterfeit at the time of sale and therefore entitled Claimant to a full refund of the purchase price plus commission fee, a total of $166,800.00; accordingly, Claimant has not met his burden of proof by a preponderance of the evidence that Respondent breached any contract with, or any warranty, representation or guaranty given to, Claimant.

2. Even assuming, arguendo, that Claimant had met his burden of proof by a preponderance of the evidence that the dial on the Rolex Watch in question (or the Watch as a whole) was counterfeit, Claimant would have no remedy against Respondent because Respondent met its burden of proof by a preponderance of the evidence that the limited warranty and other provisions of the Conditions of Sale would bar any recovery against Respondent.

3. Neither Claimant nor Respondent is entitled to attorneys’ fees or costs in this proceeding.

The Issue of Authenticity

[17].
1.1 Claimant's affirmative "proof was limited essentially to:

(i) Claimant’s own expository oral testimony (together with documentary evidence including, among other things, the purported Rolex Letter and Translated Letter Version) regarding the purchase and sale of the Rolex Watch; his attempt to have the Watch serviced by Rolex in Geneva roughly thirty months thereafter; the purported refusal by Rolex to service the Watch and the oral and written advice, and return of the Watch, with regard to such refusal; his claim to Respondent that the Watch dial had been deemed by Rolex to be counterfeit, and his demand for a full refund in the amount of $166,800.00; and the attempt by the parties to resolve Claimant’s claim, and Respondent’s ultimate refusal to pay to Claimant the amount he demanded;

(ii) The testimony and report of Claimant’s purported expert witness, Edward S. Faber; and

(iii) Certain testimony elicited from Respondent’s fact and expert witnesses which, according to Claimant, supported Claimant’s proof on the issue of authenticity.

[18].
1.2 I find that the Claimant’s proof, taken as a whole, was significantly lacking in probative value. Indeed, a centerpiece of Claimant’s proof, the purported Rolex Letter, purportedly written entirely in German, was not adequately nor otherwise properly authenticated and was otherwise without foundation proper to this proceeding. Claimant proffered, as an accessory to the Rolex Letter, the Translated Letter Version, a purported English translation of the Rolex letter, together with a purported "Certificate of Accuracy"; however, the purported "Certificate of Accuracy" was likewise without proper or adequate authentication and other foundation because, among other reasons, it was neither signed by a particular individual nor did it exhibit any governmental or other proper authenticity or authority. Moreover, Claimant failed to present at the Hearing or even at a pre-Hearing deposition (either in person, or via teleconference, video conference or Skype-like conference, or even by sworn affidavit) the Rolex official who authored the purported Rolex Letter, or a proper witness from the Rolex office that purportedly issued the Rolex Letter (nor a proper witness from any other Rolex office, nor from the Bucherer office, e.g., "Matheis", nor the purported translator of the Rolex Letter or a proper representative of the office that issued the purported Translated Letter Version and Certificate of Accuracy) to properly authenticate and/or explain the purported Rolex Letter, the Translated Letter Version and the "Certificate of Accuracy".5 Indeed, absent some or all of the foregoing proofs and proper foundation, Respondent had no opportunity to conduct a proper voir dire and otherwise to cross-examine Claimant on both the oral testimony and the documentary evidence proffered by him that was so critical to his case. Similarly, the Arbitrator was unable reliably to examine, analyze, consider or draw proper conclusions as to the content and import of the Rolex Letter vis-a-vis this proceeding.6 For the foregoing and other reasons, I am unable and unwilling to find and conclude that either the Rolex Letter or the Translated Letter Version is an authentic, reliable document, nor do I find or conclude that either the Rolex Letter or the Translated Letter Version has any probative value in this proceeding.7
[19].
1.3 The other centerpiece of Claimant’s affirmative case was the testimony of Claimant's expert witness, Edward S. Faber. I find that the testimony of Mr. Faber lacked meaningful credibility and was of limited probative value. Mr. Faber testified, reluctantly, that he has never served as an official Rolex authenticator, nor has he ever been certified as a watch expert by any court, nor does he possess any certification or degree with respect to watches, nor is he or his business a certified or authorized Rolex dealer or repair center, nor has Mr. Faber ever been employed by Rolex or any other watch manufacturer. Despite having professed on direct examination that he had inspected the insides of dozens of Paul Newman Rolex watches, Mr. Faber conceded on cross-examination that he has, in fact, not done so. Similarly, Mr. Faber testified that it was his practice to consult "a colleague" or Rolex in Geneva on the issue of authenticity where a watch does not have "hallmarks" of inauthenticity. Moreover, if Mr. Faber’s publication history is any guide, having authored a single text whose subject was American (not European) watches would not suggest ' that his expertise, if any, would be in the realm of the Rolex brand of vintage watch.
[20].
1.4 While certain portions of Mr. Faber's testimony regarding his examination and analysis of the Watch as to its authenticity may have been instructive, his oral testimony in significant part contradicted meaningfully the narrative contained in his expert report. For example, as noted above, on direct examination regarding his inspection of the Watch, Mr. Faber testified that (i) the Watch dial contains concentric circles which is definitive proof of inauthenticity, (ii) the dial is not an authentic "Singer"-manufactured dial, (iii) some letters on the dial are "puffed", and (iv) the finish of the dial paint is matte; however, Mr. Faber conceded on cross-examination that (i) he failed to state in his expert report that the existence of concentric dial circles is the definitive sign of inauthenticity, (ii) he did not state in his expert report that the dial is not an authentic Singer-manufactured dial, nor did he attempt to contact the Singer company to ascertain the authenticity of the Watch dial in relation to this case, (iii) Singer used many different printing batches for its dials, and (iv) Mr. Faber did not compare the finish of the Watch dial in this case with other Singer dials.
[21].
1.5 In sum, it is my finding and conclusion that neither the expert report nor the oral testimony of Mr. Faber was sufficiently credible, non-speculative and reliable to deem them to be of meaningful probative value.8
[22].
Based on the foregoing, and on my consideration of the full record and argument in this case, I find and conclude that Claimant has failed to meet his burden of proof by a preponderance of the credible, non-speculative evidence that the dial on the Rolex Watch in question (or the Watch as a whole) is a counterfeit, and/or that Respondent is liable to him for breach of contract or of any warranties.9 Accordingly, Claimant’s claims in this proceeding are denied.

THE CONDITIONS OF SALE AS A COMPLETE DEFENSE

[23].
2.1 As noted above, the Conditions of Sale govern the purchase and sale transaction in question, including with regard to Claimant's claim for a full refund on the grounds of inauthenticity. Thus, had Claimant met its initial burden of proof by a preponderance of the evidence on the issue of inauthenticity (he did not), then the issue whether provisions of the Conditions of Sale were a bar to Claimant’s recovery would have presented itself to the Arbitrator. Having found that Claimant has not met his burden of proof and thus is not entitled to recovery against Respondent, I need not reach the issue whether Respondent is possessed of a complete bar to recovery by virtue of the relevant provisions of the Conditions of Sale; however, as discussed below, I nonetheless find that the relevant provisions of the Conditions of Sale would have been a bar to recovery by Claimant in any event.
[24].
2.2 It is uncontroverted that, prior to the Auction, the Catalogue and the Conditions of Sale were made available by Respondent to Claimant for review and consideration, and Claimant studied them both intensively.10 Further, Claimant understood that he would be purchasing any watch solely in "AS IS" condition at the time of sale, and otherwise that the Catalogue and Conditions of Sale expressly set forth numerous disclaimers, conditions and limitations by which he, as a watch purchaser, would be legally bound. Moreover, Claimant himself, an experienced watch collector, examined and inspected the Watch at the pre-Auction preview in Geneva, choosing not to engage a vintage watch expert or any other person also to examine or inspect the Watch. In a related vein, the Conditions of Sale expressly stated that, "A person’s participation in the auction and/or purchase of any lots constitutes an agreement to be bound by these Conditions of Sale as well as the rights and obligations arising therefrom." The Conditions of Sale expressly stated further that interested purchasers (such as Claimant) were responsible for examining personally the items sold at the Auction and for reaching their own conclusions as to their value, and that Respondent was not responsible for any errors or omissions in the Catalogue or other written material. It was also expressly stated that the Conditions of Sale would take precedence over other statements and materials included in the Catalogue and that, except for the Limited Warranty contained in the Conditions of Sale, the Watch was being sold without any representations or warranties by Respondent as to, among other things, the correctness of the Catalogue or other descriptions concerning, among other things, the maker, origin, provenance or condition of the Watch. Indeed, the clarity and breadth of Respondent’s disclaimers, conditions, limitations and warnings, coupled with the awareness and actions of the Claimant, raised the legal bar as to Claimant’s attempt to place the blame on Respondent if and when Claimant were to make against Respondent a claim of inauthenticity and/or breach of contract/warranty.11
[25].
2.3 A fair reading of the Conditions of Sale leads me to conclude that, contrary to Claimant’s assertion, Respondent did not extend a warranty or guaranty that the dial in question was original to the Watch purchased by Claimant. To the contrary, the Limited Warranty contained in the Conditions of Sale expressly stated that Respondent (unless otherwise specifically stated, which was not) did not guarantee that all component parts of the Watch (which, I find, would include the Watch dial) were original to the Watch.
[26].
2.4 I find, rather, that the Limited Warranty provided for a guarantee in this regard for a limited period that the Watch was not an "intentional forger[y]", which was defined in the Conditions of Sale to mean "imitations made with the intention to deceive as to the maker or period of the timepiece... or the material used." Based on the full record, I find and conclude that no adequate, credible, non-speculative evidence was offered by Claimant to prove that the Watch dial in question, even if it had been, arguendo, a counterfeit or replacement component, had been inserted in the Watch with the intention of deceiving Claimant (or anyone else) into believing that (i) the Watch had been manufactured by or at the direction of Rolex when, in fact, it had not been; or (ii) the Watch had been manufactured during the time period suggested when, in fact, it had not been. I therefore find and conclude that neither the dial, nor the Watch as a whole, was an "intentional forgery", and thus that Respondent did not breach the Limited Warranty in that regard.
[27].
2.5 A fair reading of the Conditions of Sale leads me to conclude further that, contrary to Claimant's assertion, Respondent did not breach any warranty concerning its Catalogue description of the Watch in question or its dial. Although the Limited Warranty contained in the Conditions of Sale provided a guarantee in this regard for a limited period that the general descriptions of the Watch in question were true and correct as to matters relating to the origin, history, manufacture and physical characteristics of the Watch, I find and conclude that, based on the full record in this case, neither the description nor the "grading" of the Watch as contained in the Catalogue was proved by Claimant to have constituted a breach of such guarantee.12
[28].
2.6 Accordingly, based on a fair reading of the Catalogue and the Conditions of Sale, and on the record as a whole, I find that even had Claimant prevailed on the issue of inauthenticity (which he did not), the provisions of the Conditions of Sale, including those of the Limited Warranty contained therein, would bar any recovery by Claimant in this case.13
[29].
Accordingly, I hereby issue this Award :

1. Claimant’s claims, and each of them, are denied in all respects, and Claimant shall have no recovery on its claims against Respondent in this proceeding.

2. Each of Claimant’s and Respondent’s respective claims for attorneys’ and/or other fees are denied.

3. The administrative fees of the International Centre for Dispute Resolution, a division of the American Arbitration Association, totaling $6050.00, shall be borne as incurred by the respective parties; and the compensation of the arbitrator totaling $19,245.50, shall be borne equally by the Claimant and the Respondent.

4. This Final Award is in full and complete settlement and satisfaction of any and all claims, requests, defenses and off-sets properly submitted to the jurisdiction of this Arbitration; and any claim, request, defense or off-set not specifically granted herein is deemed DENIED.

[30].
I hereby certify that, for the purposes of Article 1 of the New York Convention of 1958, on the Recognition and Enforcement of Foreign Tribunal Awards, this Final Award was made in New York, New York.
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