Iran v The Barakat Galleries Ltd

A foreign state may enforce a patrimonial proprietary claim in England where it acquired property by means available to a private person. A claim founded on sovereign legislation which compulsorily vests ownership to protect national heritage is different. Such legislation is penal and public where it vindicates a public right through sovereign sanctions. English courts will not enforce it. A claimant in conversion or wrongful interference with goods must establish a proprietary right, not merely an immediate right to possession.

Iran sought delivery up in England of antiquities alleged to have been unlawfully excavated in Iran. It relied on Iranian heritage, civil and criminal legislation to establish ownership or, alternatively, an immediate right to possession. Barakat denied Iranian title and argued that the claim sought enforcement of foreign penal or public law.

The court determined whether Iranian law vested title or an immediate possessory right in Iran and, assuming title existed, whether the English court should recognise or enforce it.

1. Iran failed to prove that Iranian law vested ownership of the antiquities in the state. The Civil Code, the National Heritage Protection Act 1930 and its Executive Regulations regulated listing, protection, excavation and export. They created personal obligations and powers of seizure or confiscation following offending conduct, but did not confer automatic title.
2. The 1979 Legal Bill principally criminalised unauthorised excavation and the plundering or export of relics. It imposed a duty on a discoverer to deliver objects to the authorities and provided for seizure following conviction. It contained no express vesting of title in Iran.
3. The statutory surrender duty gave Iran an immediate right to possession. That right was insufficient for conversion or wrongful interference with goods because a proprietary right was also required. Jarvis v Williams and International Factors Ltd v Rodriguez supported that conclusion.
4. Assuming Iran had acquired title, the claim was not patrimonial. Title arose from sovereign legislation designed to protect national heritage and backed by imprisonment and seizure. The claim therefore sought enforcement of foreign penal and public law and was not justiciable.
5. Both preliminary issues were answered in the negative.