Withers Worldwide

Iran, like Egypt, Greece and Italy, is actively seeking to recover antiquities it claims originated from monuments and sites situated in its territory.  On 1 February 2007, the High Court in London handed down judgment in a case in which the Islamic Republic of Iran claimed the return of a limestone sculpted fragment from the ancient palace of Persepolis. The fragment had left Iran some time after 1932 and been bought at an auction in 1974 in New York on behalf of Mrs Berend, a French numismatist, who shortly afterwards received it in Paris, where she kept it in her apartment for just over 30 years, before consigning it to Christie's for auction in London.

The main question was whether Mrs Berend had acquired title to the fragment.  The answer to that question depended on the law applicable to her purported acquisition of ownership.  As a matter of English law, it was accepted that French law applied. This is because under English choice of law rules, the law governing the issue of title is the law of the country where the item of moveable property is situated when the alleged title is claimed to have been acquired.  In this case, it was agreed that the fragment was an item of moveable property and that it was in France when Mrs Berend claimed to have acquired title, accordingly the natural choice for an English Court was to apply French law to decide if in fact, Mrs Berend had acquired title.

However, the English Court was asked to address a further issue.  Iran claimed that if French law applied, French choice of law rules also applied, and French choice of law rules dictated that the issue of title should not be decided under French law but under Iranian law.  If Iran was correct, and Iranian law applied to the issue of title, it was accepted that Iran had retained title to the fragment. 

Iran argued that a notional French judge would apply a special conflict of laws rule to ‘cultural property', especially an item that could be considered as (part of) a national treasure, and relied on the existence of international conventions such as that of UNESCO and Unidroit despite the fact that these have not been assimilated into French domestic law (or were not at the relevant time). It was accepted that no French court was known to have taken this course before, but Iran's expert pointed to substantial French legal writings that in his view strongly suggested that a French court ought to apply the law of the country of origin of the item in question, i.e. Iran. If this were right, it was indisputable that the fragment would have to go back to Iran. The English judge was not prepared to go so far as to accept these suggestions, and declined to make such a bold decision, holding that although distinguished French legal writers might wish for this approach, it was his job to apply the French law as (in his view) it actually was, not what it might or should be.  There was no French case law applying a special conflict of laws rule to ‘cultural property', and the English judge was not prepared to second-guess the French courts.

In any event, the English judge noted that there was no binding English authority requiring him to apply French choice of law rules.  He decided that he would apply French domestic law, and proceeded to decide the issue of title according to that law.

Under French law, when there is an ownership dispute between the dispossessed owner and the buyer in good faith, the latter is preferred.  The possessor of moveable property who bought in good faith is generally entitled to claim rights of ownership.  It was accepted that Mrs Berend had acted in good faith when she acquired possession of the fragment, and she had held it in good faith.  Applying French law, the English Court held that she succeeded against Iran, and that she was entitled to deal with the fragment as she saw fit.

This is quite an interesting example of how, in this field, a case in England can turn on almost exclusively foreign law.  It also shows that the legal analysis can be complex and that depending on the applicable law, the Court may reach a different conclusion.