Court of Appeal

Published January 7, 2008

Islamic Republic of Iran v Barakat Galleries Ltd

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Wall and Lord Justice Lawrence Collins

Judgment December 21, 2007

A claim by a state to recover antiquities which formed part of its national heritage should not be shut out on the ground that an action whose object was to enforce the public law of another state should not be entertained.

The Court of Appeal so held in a reserved judgment allowing an appeal by the claimant, the Government of the Islamic Republic of Iran, against the dismissal by Mr Justice Gray in the Queen’s Bench Division ([2007] EWHC 705 (QB)), following the trial of preliminary issues, of its claim to recover antiquities from the defendant, Barakat Galleries Ltd.

Sir Sydney Kentridge, QC, Mr Norman Palmer and Mr David Scannell for Iran; Mr Philip Shepherd, QC and Mr David Herbert for Barakat.

THE LORD CHIEF JUSTICE, 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 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.

The preliminary issues tried 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.

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 first question reflected the fact that it was common ground between the parties that the question of title to the antiquities fell to be determined according to Iranian law, as being the lex situs of the antiquities at the time of derivation of such title.

Iran’s primary case was that Iranian law vested in Iran a proprietary title to the antiquities that entitled Iran to recover them in proceedings in England. It developed, however, an alternative case that Iranian law gave Iran an immediate right to possession of the antiquities that founded a claim in England for conversion or wrongful interference with the goods.

Barakat successfully challenged both contentions. Accordingly, the judge answered the first question in the negative with some regret.

The second question reflected Barakat’s contention that, if Iranian law did confer any right upon Iran in relation to the antiquities, such law was a penal or public law and thus one that was not enforceable in this jurisdiction.

The judge concluded that the relevant Iranian law relied upon by Iran was both penal and public in character and that, accordingly, it could not be enforced in this country or relied upon to found Iran’s claim to relief. That also was a conclusion which the judge described as regrettable.

Their Lordships had concluded that Iran enjoyed both title and an immediate right to possession of the antiquities under the law of Iran.

Had their Lordships not formed that view, they would have concluded that 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.

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.

If their Lordships were wrong in the view that this was not a claim to enforce foreign public law, then their Lordships did not consider that it should 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 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 in the affirmative.

Solicitors: Withers LLP; Lane & Partners LLP, Bloomsbury.

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