| CONFLICTS OF LAW — Jurisdiction — Claim by foreign state to recover antiquities — Objects excavated and unlawfully removed from Iran — Iran never possessing objects — Whether Iran obtaining title to objects — Whether to be enforced
Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2007] EWCA Civ 1374 [2007] WLR (D) 343
CA: Lord Phillips of Worth Matravers CJ, Wall and Lawrence Collins LJJ: 21 December 2007
A claim by a state to recover antiquities which formed part of its national heritage should not be precluded by any general principle that it was not right to entertain an action whose object was to enforce the public law of another state.
The Court of Appeal so held in allowing an appeal by the claimant, the Government of the Islamic Republic of Iran, against the dismissal by Gray J in the Queen’s Bench Division on 29 March 2007 ([2007] EWHC 705 (QB)), following the trial of preliminary issues, of its claim to recover antiquities from the defendant, the Barakat Galleries Ltd.
The preliminary issues were: (1) whether under the provisions of Iranian law pleaded in the amended particulars of claim Iran could show that it had obtained title to the objects as a matter of Iranian law and, if so, by what means, and (2) if Iran could show that it had obtained such title under Iranian law, whether the court should recognise and/or enforce that title. The judge answered each question “no”.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that Iran sought to assert its ownership of antiquities which were almost 5,000 years old, which originated, it alleged, from recent excavations in the Jiroft region of Iran which were unlicensed and unlawful under the law of Iran. The origin of the antiquities was denied by Barakat, but Iran’s allegations were assumed to be correct for the purpose of the preliminary issues. Barakat had the antiquities in its possession in London. It claimed to have purchased them in France, Germany and Switzerland. Their Lordships had concluded that Iran enjoyed both title and an immediate right to possession of the antiquities under the law of Iran. Alternatively, Iran enjoyed an immediate right to their possession under the law of Iran which of itself would suffice to found a claim in conversion in this jurisdiction. Thus the first question would be answered in the affirmative. Barakat contended that Iran was attempting to enforce a foreign penal and public law which was not justiciable in this country. However, Iran asserted a claim based upon title to antiquities which formed part of Iran’s national heritage, title conferred by legislation that was nearly 30 years old. That was a patrimonial claim, not a claim to enforce a public law or to assert sovereign rights. This was not within the category of case where recognition of title or the right to possess under the foreign law depended on the state having taken possession. In any event, the claim should not be precluded by any general principle that this country would not entertain an action whose object was to enforce the public law of another state. There were positive reasons of policy why a claim by a state to recover antiquities which formed part of its national heritage and which otherwise complied with the requirements of private international law should not be shut out by that general principle. Conversely, it was certainly contrary to public policy for such claims to be shut out. There was international recognition that states should assist one another to prevent the unlawful removal of cultural objects, including antiquities. There were a number of international instruments which had the purpose of preventing unlawful dealing in property which was part of the cultural heritage of states. The United Kingdom was party to some of them. Those instruments illustrated the international acceptance of the desirability of protection of the national heritage. A refusal to recognise the title of a foreign state, conferred by its law, to antiquities unless they had come into the possession of such state, would in most cases render it impossible for this country to recognise any claim by such a state to recover antiquities unlawfully exported to this country. The second preliminary issue should be answered “yes”.
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