Islamic Republic of Iran v The Barakat Galleries Ltd

A foreign State may sue in conversion where the law of the place in which antiquities were found vested the State with ownership or an immediate right to possession. The substance of the foreign rights, rather than their domestic label, determines whether they amount to ownership under English law.

A patrimonial claim to recover State-owned antiquities is not an attempt to enforce foreign penal or public law merely because the governing legislation also creates offences. Prior possession by the State is unnecessary unless its title arose through confiscation or compulsory acquisition from a private owner. English public policy favours recognition of otherwise valid claims to recover unlawfully removed cultural heritage.

Iran sought the recovery in conversion of 18 ancient objects held in London by Barakat. For the preliminary issues, it was assumed that the objects had recently been excavated unlawfully in Iran and exported illegally. Their provenance and Barakat’s alleged acquisition of good title abroad remained disputed.

Gray J held that Iranian legislation did not give Iran a proprietary title, although it gave Iran an immediate right to possession. He considered that such a right could not support conversion without a proprietary interest. He further concluded that the relevant Iranian law was penal and public and therefore could not be enforced in England.

The appeal concerned whether Iran had ownership or a sufficient possessory right under Iranian law and whether its claim was barred as an attempt to enforce foreign penal or public law.

1. Appeal allowed. The first preliminary issue was answered affirmatively because Iranian law, particularly the Legal Bill of 1979, vested Iran with title to the antiquities. The second issue was also answered affirmatively: that title could be recognised and enforced through an English claim in conversion.

2. The substance of rights created by foreign law must be examined through English legal concepts. The finder of antiquities governed by the 1979 Bill could neither retain them nor transfer title. The finder had to surrender them promptly and had only a right to a statutory reward. Iran alone enjoyed the extensive and exclusive rights characteristic of ownership. The Bill therefore displaced inconsistent finder-title rules in the Iranian Civil Code.

3. Alternatively, Iran had an immediate right to possession which would itself support conversion. Where an owner transfers an immediate right to possession while retaining ownership, the transferee may sue in conversion. Jarvis v Williams [1955] 1 WLR 71 was not safe authority for an absolute rule that a contractual right to immediate possession could never suffice.

4. The proprietary consequences of the 1979 Bill were not penal. Although the Bill created criminal offences and penalties, its ownership provisions operated prospectively and did not confiscate antiquities from existing private owners. Characterisation depended on the particular provision and the substance of the right enforced.

5. The rule against enforcing foreign public law applies where the claim involves an exercise or assertion of sovereign authority or seeks to enforce governmental interests of that character. Iran instead asserted a patrimonial title to antiquities forming part of its national heritage. Its claim was comparable to a private owner’s claim and did not depend upon prior possession.

6. Prior reduction into possession is ordinarily required where a foreign State acquired property from a private owner through confiscation or compulsory process. It is unnecessary where legislation originally vested the State with title to previously undiscovered antiquities. In any event, international co-operation and protection of cultural heritage supplied strong public-policy reasons not to exclude such a claim.

1. Court of Appeal (Civil Division): Allowed Iran’s appeal. It held that Iran had title under Iranian law and that its claim in conversion was justiciable in England.
2. High Court: Gray J determined both preliminary issues in Barakat’s favour on 29 March 2007. He held that Iran lacked proprietary title and that any relevant Iranian right arose under penal and public law which could not be enforced in England.