Government of the Islamic Republic of Iran v The Barakat Galleries Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Gray
Judgment Date29 Mar 2007
Neutral Citation[2007] EWHC 705 (QB)
Docket NumberCase No: TLQ/06/0601

[2007] EWHC 705 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before

The Honourable Mr Justice Gray

Case No: TLQ/06/0601

Between
Government of the Islamic Republic of Iran
Claimant
and
The Barakat Galleries Limited
Defendant

Hodge Malek QC and Tony Oakley instructed by Withers LLP for the claimant

Philip Shepherd QC and David Herbert instructed by

Messrs Lane & Partners for the defendant

Hearing dates: 5—8 March 2006

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Gray

Mr Justice Gray

The Claim

1

This is an action brought by a foreign sovereign state to recover articles which it considers form part of its national heritage. The claimant, The Government of the Islamic Republic of Iran (“Iran”), seeks an order for the delivery up of a number of carved jars, bowls and cups made out of chlorite (“the antiquities”). It is Iran's case that the antiquities derive from the Jiroft region of Iran. Jiroft is a city in the Halil river valley in South East Iran. It is thought to have been the home of the one of the earliest literate societies in the world, dating back to the third millennium BC. Jiroft was discovered in the last few years, so it is only recently that excavation began there. As is accepted, no consent was given by or on behalf of Iran to the removal of the antiquities from Iran.

2

The defendant, The Barakat Gallery Ltd (“Barakat”) has a gallery in London, from which it trades in ancient art and antiquities from around the world. Barakat admits being in possession of the antiquities but disputes the entitlement of Iran to their return. Barakat does not accept that the antiquities came from the Jiroft region. In any event Barakat contends that it has acquired good title to the antiquities under the laws of certain countries where it acquired the antiquities, namely France, Germany and Switzerland. In the alternative Barakat maintains that, even if (contrary to Barakat's primary case) Iran has title to the antiquities by virtue of the laws of Iran, the present claim cannot succeed because Iran is seeking by this action to enforce, directly or indirectly, Iranian penal or public laws.

The Preliminary Issues

3

It is common ground that, if Iran does not have either title to or a right to immediate possession of the antiquities under the laws of Iran, the action cannot succeed. It is also common ground between the parties that, even if Iran has a valid title to the antiquities by virtue of Iranian law, the action will still fail if it be the case that the Iranian law or laws by virtue of which Iran acquired title is properly to be characterised as “penal”. Barakat's case is that, even if the relevant Iranian laws do not qualify as penal laws, they are nevertheless “public” laws and as such also unenforceable in the courts of this country. Iran's answer to these contentions is that the laws by virtue of which it acquired title to the antiquities are neither penal nor public laws. Iran accepts that penal laws are unenforceable in the courts of this country and that there is Court of Appeal authority (which is binding on me) that public laws of a foreign sovereign state are not enforceable either. Iran reserves the right to argue hereafter, if necessary, that public laws of a foreign state are or should be enforceable here.

4

In these circumstances the parties obtained an order on 13 th December 2006 for the trial of the following preliminary issues:

“(1) Whether under the provisions of Iranian law pleaded in the Amended Particulars of Claim, [Iran] can show that it has obtained title to [the antiquities] as a matter of Iranian law and, if so, by what means;

(2) If [Iran] can show that it has obtained such title under Iranian law whether this court should recognise and/or enforce that title”

5

The Order further provides that, for the purpose of the trial of these preliminary issues, it is to be assumed that “Iranian law is the applicable law for the acquisition/transfer of title to the antiquities and that the antiquities do originate from The Islamic Republic of Iran in the circumstances alleged in the Amended Particulars of Claim”. It is further to be assumed to be true that the antiquities were excavated from the Jiroft area. It is agreed that such excavation was unlicensed and therefore unlawful.

The parties' cases in summary

6

The contention advanced by Iran is in summary that under Iranian law it is the lawful owner of all antiquities excavated from the Jiroft area, including those which are the subject of this action. Iran relies in paragraph 6 of the Amended Particulars of Claim on the following provisions of Iranian law:

i. a Legal Bill regarding clandestine diggings and illegal excavations intended to obtain antiquities and historical relics which are according to international regulations made or produced one hundred or more years ago (“the 1979 Legal Bill”);

ii. 1930 National Heritage Protection Act;

iii. Executive Regulations of the “National Heritage Protection” dated 3 November 3, 1930;

iii. Article 26, Civil Code.

7

In support of its contention that the removal of such antiquities from the Jiroft area without consent is a crime under Iranian law, Iran relies in paragraph 7 of the Amended Particulars of Claim upon the following additional provisions of Iranian law:

i. Islamic Punishment Law, chapter 9;

ii. Decree issued by the Revolution Council in 1980 (Decree Concerning Export Prohibition of Antiquities, Works of Art and Gold and Silver Wares, decree no. 64434, 12 January 1980);

iii. Constitution of Iran, Article 83.

8

The antiquities are now in the possession of Barakat in England. Iran's case is that under Iranian law, in the absence of consent from Iran permitting the antiquities to be present in the United Kingdom, they are held here by Barakat contrary to Iranian law. Accordingly Iran contends that the antiquities are lawfully their property and should be delivered up accordingly.

9

Iran advances an alternative contention that, even if under Iranian law it is not the owner of the antiquities, at all material times it had under Iranian law an immediate right to possession of the antiquities. By refusing the request made to it for the return of the antiquities, Iran contends that Barakat has wrongfully interfered with or converted the antiquities.

10

The response of Barakat to these contentions is, firstly, to deny that Iranian law has conferred any possessory title on Iran so as to be able to dispossess Barakat of the antiquities. Barakat's case is that it purchased the antiquities at auction or from other dealers in England, France, Switzerland and Germany. Barakat maintains that, even if, according to Iranian law, Iran did acquire a right to possession of the antiquities at a time when they were within its territory, the fact that (as is conceded) Iran did not obtain actual possession of them prevents Iran from obtaining an order from the English courts which would give it possession of the antiquities for the first time. Barakat further denies Iran's claim that it is or was at any material time entitled to immediate possession of them.

11

Barakat maintains that, even if, contrary to its primary contention, Iran did become the owners of the antiquities under Iranian law, the claim must still fail on grounds of non-justiciablity. Barakat submits that by this action Iran is seeking, directly or indirectly, to enforce in the domestic courts of this country an exercise of the sovereign power or authority of a foreign state. According to the argument on behalf of Barakat, the present claim falls squarely within the rule summarised in Article 3(1) of Dicey Morris & Collins:

“Rule 3 – English Courts have no jurisdiction to entertain an action:

(1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state; or

(2) founded upon an act of state”.

The First issue: approach to Iranian law.

12

Resolution of the first preliminary issue depends entirely on Iranian laws and their interpretation. It is in some respects invidious for an English Judge to have to determine delicate questions of the construction of foreign law. That is particularly so in cases such as the present where there is no relevant decision of an Iranian court and where in any event there is no judicial precedent.

13

In the present case I have been assisted by expert evidence from Professor Muhammad Taleghany on behalf of Iran and from Mr Hamid Sabi on behalf of Barakat. Professor Taleghany was a Professor of Law at Teheran University until 1984, when he moved to London. He is the author of a number of books and articles on law both in Persian and English. Somewhat unusually, he has translated for the purposes of the present proceedings a number of the provisions of Iranian law which are said to be material. Mr Sabi was a member of the Iranian Bar. He practised law in Iran between 1974 and 1979, when he moved to London. Since that time he has practised as a consultant advising amongst other clients governments and major multi-corporations. Although Mr Philip Shepherd QC for Barakat was critical of Professor Taleghany on the grounds that his approach to the present case lacked objectivity, I am satisfied that both experts did their best to assist me.

14

Determination of the applicable foreign law is a question of fact for me to decide. The approach which I should take is helpfully summarised in an unreported decision of Moses J (as he then was), City of Gotha v Sotheby's and another (QBD, 9 September 1998):

“In resolving the disputes as to foreign law, I must be guided by the following principles:

(1) when faced with conflicting...

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