Iran v Berend

English conflict-of-laws rules ordinarily refer title to movable property to the domestic law of the situs at the relevant time. The doctrine of renvoi should not be introduced for movables merely to give effect to the situs court’s choice-of-law rules. Its use is policy-dependent and is not a general doctrine.

Where foreign law is a matter of evidence, an English court should determine the law as it stands, applying established principles and methodology. It should not anticipate an unprecedented judicial policy development in the foreign jurisdiction.

Under French law, possession under Article 2279 of the Civil Code may confer title instantaneously. The public-possession requirement in Article 2229 concerns prescription under Article 2262 and does not qualify acquisition under Article 2279.

The claimant sought recovery of an Achaemenid limestone relief fragment originating from Persepolis. The defendant had acquired it in good faith at auction in New York and took possession in Paris in November 1974.

The parties agreed that the fragment was movable property and that French law was relevant under the English lex situs rule. The claimant argued that the court should apply French conflict-of-laws rules by way of renvoi, leading to Iranian law as the law of the object’s state of origin. Alternatively, the claimant disputed the publicity of the defendant’s possession for the purposes of prescription.

The court determined whether renvoi applied, whether a French court would apply Iranian law, and whether the defendant had acquired title under Articles 2279 or 2262 of the French Civil Code.

1. Renvoi. The court held that English law did not require renvoi in determining title to a movable situated in France. Renvoi is a policy-based tool, not an overarching doctrine. The policy of certainty and simplicity supported applying French domestic law as the lex situs. The court followed the reasoning of Macmillan v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978 and found no sufficient basis in the observations in Glencore International AG v Metro Trading International Inc [2001] 1 Lloyds Rep 284 to reach a different result.
2. Iranian law. The claimant failed to establish, on the balance of probabilities, that a French court would create an unprecedented exception to the lex situs rule for cultural objects and apply Iranian law. The relevant international conventions and French legislation had not been implemented so as to produce that result. The court therefore applied French domestic law.
3. Acquisition by possession. The defendant’s conceded good faith meant that, under Article 2279 of the French Civil Code, she acquired title when possession was transferred in November 1974. The publicity requirement in Article 2229 was directed to prescription and had no application to instantaneous acquisition under Article 2279.
4. Prescription. Alternatively, the defendant’s possession was not clandestine for Article 2229 purposes. French law did not require an innocent possessor of a movable held openly in private premises to publicise possession to the claimant. The characteristics and ordinary use of the property were relevant.
5. There was judgment for the defendant. Consequential matters, including any enquiry as to damages arising from the injunction, were left for further argument.

First-instance judgment. No appellate history was stated in the judgment.