The Hon. Mr Justice Eady :
The factual background
- The chronology in this case begins, unusually, in 531 B.C. This is because it is thought to represent the beginning of the period during which Persepolis was constructed. It is believed that the process of building the city continued until approximately 359 B.C. (that is to say between the reigns of Darius I and Artaxerxes III). The subject-matter of these proceedings is a fragment of an Achaemenid limestone relief, believed to originate from the first half of the fifth century B.C. It is approximately 23.7cm high and 31.5cm wide, consisting of the head and shoulders of a Persian guardsman with a spear. It would appear to come from the northern façade of the eastern staircase of the Apadana (audience hall), which lay buried from the time the city was sacked by Alexander the Great in 331 B.C. until excavations in the early 1930s. It is thought by some scholars that these processional reliefs inspired those incorporated shortly afterwards in the Parthenon.
- The Islamic Republic of Iran seeks to recover the fragment as part of a national monument to which it claims entitlement in accordance with certain legal provisions dating from the first half of the twentieth century. The Defendant, Mme Denyse Berend, resists the claim primarily on the basis that she had acquired title in the fragment after it was sold to her through an agent at a New York auction in October 1974. (It is perhaps worth noting that the vendor had himself also acquired the piece at public auction in New York in May 1974.) It is submitted that, in accordance with French domestic law, the Defendant acquired title in good faith when it was delivered to her in Paris on 10 November of that year. Alternatively, it is submitted that she would have acquired title by prescription after 30 years' possession in November 2004.
- The fragment is here in the safe keeping of Christie's to whom it was delivered in January 2005 (after an export licence was obtained from the French government). It was due to be sold by Christie's in London on 20 April of that year but, on the day before, an injunction was granted by Silber J in favour of Iran. That is where matters now stand and how it comes about that the claim is brought in this jurisdiction.
- The Claimant's case was significantly amended at the end of September last year pursuant to an order of Irwin J, and it is now sought to be argued that an English court should apply Iranian law to the question of title by a process of reasoning based upon an expert report of 18 September 2006 from Maitre Dominique Foussard. It is said that as a matter of French law the question should be governed by the law of the state of origin of the fragment; that a French judge would apply an exception, for policy reasons, to the general rule of French law that the question of title to movables is determined according to the situs.
The 12 points of agreement
- The counsel in the case, Mr Lazarus representing the Claimant and Mr Lowenstein representing the Defendant, are to be commended for the way in which this litigation has been prepared and presented. The issues have been significantly narrowed. In particular, they have agreed 12 important propositions on the basis of which I should proceed to resolve the dispute:
1. The fragment was the property of the Claimant immediately before it was exported from Iran.
2. The Defendant does not rely on any fact or event as defeating the Claimant's title to the fragment prior to her alleged acquisition of possession in Paris in November 1974.
3. As a matter of English law and of French law the fragment is to be characterised as movable property.
4. If, as a matter of French law, Iranian law governs the question whether the Defendant's alleged acquisition of possession of the fragment in November 2004 (sic) and/or any subsequent events or lapse of time prior to April 2005 confer title on the Defendant, the Claimant retains title to the fragment.
5. The general rule in French law is that title to a movable is governed by the lex situs, i.e. the law where the object is situated at the time of the event(s) said to confer title.
6. The French lex situs rule is a rule of judge made law.
7. There are no reported cases in the French courts addressing the following propositions advanced by the Claimant, namely:
7.1 That a French court will decline the general lex situs rule in relation to a constituent part of a national treasure such as an ancient palace and would apply the law of the object's state of origin;
7.2 That the treaties and resolution referred to at 8 below embody a policy to which French law would have regard, namely that in relation to illicitly exported artistic or cultural property, the most appropriate law to govern the question of title is the law of the state of origin;
7.3 The further contentions and matters set out at paragraphs 2A.3.6 to 2A.3.9 of the Amended Reply. [These refer in particular to certain propositions said to be recognised by French law, namely:
(i) the competence of a foreign state to establish rules for its own functioning and to "determine the alienability of goods assigned to the state's activities as a public authority";
(ii) where an object has been separated from a larger item, which was itself a national treasure, there would be an especially powerful argument to apply the law of the place of origin;
(iii) a distinction is to be drawn between objects of ordinary commerce, where their origin is not an essential consideration for the acquirer, and cultural objects when it can be critical.]
8. The following treaties and French legislation relied upon by the Claimant do not apply directly to the fragment, namely;
8.1 the UNESCO Convention of 14 November 1970 (Amended Reply paragraph 2 A.3.3(a));
8.2 the UNIDROIT Convention of 24 June 1995 (Amended Reply paragraph 2 A.3.3(b));
8.3 Article L.112 of the Code du Patrimoine of 3 April 1995 (Amended Reply paragraph 2 A.3.3(c));
8.4 Resolution IV Article 2 of the Institut de Droit International, Basle 1991 (Amended Reply paragraph 2A.3.4);
9. As a matter of French domestic law there are two alternative bases for the Defendant's claim to title to the fragment, namely Articles 2279 and 2262 of the Civil Code.
10. In relation to the claim under Article 2279 (acquisition of title by possession), it is necessary for the possessor to be in good faith.
11. In relation to the claim under article 2262 (30 year prescription), it is necessary for the Defendant to show that her possession has been public and not clandestine.
12. If the Defendant has title to the fragment, the Defendant is entitled to be compensated for any loss she has sustained by reason of the granting of the injunction on 19 April 2005 to restrain the sale of the fragment at Christie's on 20 April 2005.
The Defendant's case summarised
- The Defendant's case was conveniently summarised by Mr Lowenstein in these terms:
i) The fragment is to be characterised as movable property. Accordingly, the English conflict of laws rules dictate that French law governs the question of title to the fragment, since the Defendant obtained her title to it at a time when the fragment was in France (i.e. on delivery in November 1974).
ii) The Defendant took possession of the fragment in good faith, on delivery, and at that moment obtained good title in accordance with Article 2279 of the civil code.
iii) Even if this proposition were wrong, the fragment was nonetheless in the Defendant's continuous and open possession for a period of more than 30 years. Accordingly, she would have obtained good title by prescription in accordance with Article 2262 of the code.
The Claimant's case summarised
- Originally, it was the Claimant's contention that the French law rules governing movable property had no application because the fragment was properly to be characterised as immovable. As I have already made clear, it is now common ground that it should be regarded as movable.
- It is now submitted that the English court should not simply apply French domestic law, but should apply also the French conflict of law rules. That is to say, I should apply the doctrine of renvoi. It is recognised that there is no English authority directly in point and that, if I were to do so, this would be the first application in this jurisdiction of the doctrine to movable property.
- Assuming that I were prepared to bring into play the French rules of private international law, the Claimant submits that I should in doing so proceed on the premise that a French judge would introduce an exception to its traditional lex situs rule and apply the law of Iran (as the state of origin). This would be on the basis that the fragment should be regarded as artistic or cultural property. As both parties recognise, there is no reported French case law to support such an exception. I must now turn, therefore, to the Claimant's case on how this hiatus is to be filled.
- The case is put in the Amended Reply of September 2006 as follows. The basic French rule, that title to movables is determined according to the lex situs, is not established by legislation but by jurisprudence. Accordingly, it is potentially subject to exceptions which may be developed by judges on a case by case basis.
- Moreover, it is said, if a French judge were called upon to determine the matter, he or she would indeed introduce such an exception for reasons of policy which are to be found embodied in the international instruments and French statute to which I have referred:
a) the Convention on the Means of Prohibiting and Preventing the Illicit Import Export and Transfer of Ownership of Cultural Property adopted at the General Conference of UNESCO on 14 November 1970, which contains measures seeking to prevent the illicit import, export and transfer of such property and, in particular, Article 3 which provides:
"The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this convention by the States Parties thereto, shall be illicit".
b) the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome 24 June 1995) which provides at Article 5(i):
"A Contracting State may request the court or other competent authority of another Contracting State to order the return of a cultural object illegally exported from the territory of the requesting state".
c) Article L112 of the Code du Patrimoine of 3 April 1995, a French statute which provided for the return of cultural property from France to other members of the European Union where such property has been illicitly removed from the territory of another member of the European Union.
- Reliance is also placed upon Resolution IV Article 2 of the Institut de Droit International at Basle in 1991, to the effect that the transfer of ownership of works of art belonging to the cultural heritage of the country of origin shall be governed by the law of that country.
- As is already clear, it is accepted by both parties that none of the conventions or French legislation cited above applies directly to the fragment. What is said, however, is that a French judge would nevertheless "have regard" to, or be "inspired" by, the underlying policy that the most appropriate law to govern questions of title is the law of the state of origin.
- My attention has also been drawn to academic writings by Bernard Audit, Louis d'Avout and Christian Armbrüster, in which support has been expressed for the proposition that title to a cultural object which has been illicitly removed from its state of origin should be governed by the law of that state. It is said that a French judge determining the question would "have regard to such writings".
- An alternative argument is also to be found in the Amended Reply, namely that a French court would, or might, address the question of title by reference to a combination of Iranian and French law, and arrive at the conclusion that the Defendant would not be treated as having acquired title unless her acquisition would be "authorised by both systems of law".
- If and in so far as is necessary for the Defendant to rely upon her alternative argument, by way of prescription in accordance with Article 2262, the submission is advanced on the Claimant's behalf that the nature of her possession between November 1974 and November 2004 was insufficiently "public" to satisfy the relevant French criteria.
- A recent development, by way of letter on 5 January 2007, was that the Claimant's advisers were not requiring the attendance of any of the Defendant's lay witnesses (including herself) and that the content of their statements was admitted. These additional concessions include the important propositions that:
a) the Defendant took possession of the fragment in good faith; and
b) the fragment was continuously on display in the living room of the Defendant's Paris home at all material times.
- This had the effect of reducing the live issues to questions of English and French law, and the only two witnesses to give evidence before me were the respective French law experts.
The first issue: Should renvoi be applied with regard to movable property?
- The first issue for me to resolve has been defined as follows:
As a matter of the English conflict of laws rules, in determining the question of title to the fragment as movable property situated in France, will the English court (as the Defendant contends) apply only the relevant provisions of French domestic law, or (as the Claimant contends) apply the relevant French conflict of laws rules as well as any relevant substantive provisions of French domestic law (thereby giving effect to a renvoi)?
- There is no binding authority to the effect that English private international law will apply the renvoi doctrine to such questions. Whether or not it should apply in any given circumstances is largely a question of policy. To take examples, it has been applied most frequently in the context of the law of succession; on the other hand, it is not applied in the fields of contractual relations or tort. It seems that the modern approach towards renvoi is that there is no over-arching doctrine to be applied, but it will be seen as a useful tool to be applied where appropriate (i.e. to achieving the policy objectives of the particular choice of law rule): see e.g. Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC [2001] QB 825, at [26]-[29], per Mance LJ; Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54, High Court of Australia.
- The nature of the policy considerations which come into play was addressed by Millett J (as he then was) in Macmillan v Bishopsgate Investment Trust plc (No3) [1995] 1 WLR 978, 1008. It was one of the cases dealing with the fallout from Robert Maxwell's fraudulent activities and concerned intangible property, in the context of share ownership. More generally, however, the learned Judge made the following observations:
"The determination of a question of priority between competing claims to property is based on considerations of domestic legal policy, since it involves striking a balance between two competing desiderata, the security of title and the security of a purchase. A decision by an English court, based on English principles of conflict of laws, that the question should be determined by the application of the rules of a foreign law is also based on considerations of legal policy, albeit at a higher level of abstraction. It involves a policy decision, at the higher level, that the policy which has been adopted, at the lower level, by English law should not be applied because the considerations which led to its adoption in the domestic law are not relevant in the particular circumstances of the case; and to a policy decision, at a higher level, that the policy which has been adopted, at the lower level, by the foreign law should be applied in its stead. In my judgment there is or ought to be no scope for the doctrine of renvoi in determining a question of priority between competing claims to shares, and in the absence of authority which compels me to do so – and there is none – I am not willing to extend it to such a question".
- It was urged upon me on the Defendant's behalf that this reasoning is equally applicable here. It is undoubtedly compelling. On the other hand, my attention was drawn to a passage in the judgment of Moore-Bick J (as he then was) in Glencore International AG v Metro Trading International Inc [2001] 1 Lloyds Rep 284 at [41], where he made the following obiter comment upon the words of Millett J cited above, addressing a potentially material distinction between share ownership and the title to movables:
"However, if the lex situs rule in relation to movables rests, at least in part, on a recognition of the practical control exercised by the state in which they are situated, there is something to be said for applying whatever rules of law the courts of that state would actually apply in determining such questions [and a passing reference was made to Dicey & Morris, The Conflict of Laws (13th edn)]".
- I have difficulty in formulating what the "something to be said" might be, on the facts of this present case, which would be sufficiently cogent to undermine the reasoning of Millett J in Macmillan. English law has held for many years, in order partly to achieve consistency and certainty, that where movable property is concerned title should be determined by the lex situs of the property at the time when the disputed title is said to have been acquired. Millett J saw no room for the doctrine of renvoi, in the share context, and I see no room either as a matter of policy for its introduction in the context of a tangible object such as that in contention here. In particular, I can detect no relevance to the present circumstances of any "practical control" which might at some point have been exercised by the state of France and which requires me to depart from the reasoning of Millett J.
- It was argued by Mr Lazarus that the particular passage in the judgment simply begs the question as to whether the "foreign law" contemplated embraced choice of law rules or not, but it seems from the context to be clear that Millett J was endorsing an established policy in English law of choosing the lex situs in the sense of domestic law. Otherwise it would hardly make sense for the judgment to reject the doctrine of renvoi. I can find no reason to differ from Millett J and to hold, for the first time, that public policy requires English law to introduce the notion of renvoi into the determination of title to movables.
- I was referred to textbooks which were said to lend support to the opposite view. There was a short passage on the applicability of renvoi to movable property in Dicey, Morris & Collins (14th edn) at 4-025. It follows a paragraph on "Title to land situated abroad" in which the view was expressed that there is a "relatively strong case" for the application of renvoi in that context, largely because an adjudication in England contrary to what the lex situs would actually hold "would be in most cases a brutum fulmen, since in the last resort the land can only be dealt with in a manner permitted by the lex situs". When the learned editors move to the subject of "movables situated abroad", they reach the conclusion:
"The argument is much weaker than in the case of land, because the movables may be taken out of the jurisdiction of the foreign court."
The support for the Claimant's case there would appear lukewarm, to say the least. It is curious that at this point in the book no reference at all is made to the judgment of Millett J (although it is certainly addressed in other contexts). It is too flimsy to warrant my rejecting his reasoning as being invalid for tangible movable property.
- In any event, it is necessary to have in mind, on the other side of the argument, the general observations of the editors at 4-034 headed "Conclusions":
"As a purely practical matter it would seem that a court should not undertake the onerous task of trying to ascertain how a foreign court would decide the question, unless the advantages of doing so clearly outweigh the disadvantages. In most situations, the balance of convenience surely lies in interpreting the reference to foreign law to mean its domestic rules".
Similar sentiments were expressed in the Neilson case (cited above) at [92], per Gummow and Hayne JJ:
"But as Kahn-Freund pointed out, the intellectual challenge presented by questions of conflict of laws is its main curse. Whenever reasonably possible, certainty and simplicity are to be preferred to complexity and difficulty".
- Reference was also made to Cheshire & North, Private International Law (13th edn. 1999). One passage (at p. 948) addresses the question "will the English court apply the law, not of the situs itself, but of whichever country is selected as applicable by the choice of law rules of the law of situs?" It is said that some "tentative support" is to be found in the judgment of Slade J (as he then was) in Winkworth v Christie, Manson & Woods Ltd [1980] Ch 496, 514, where the learned Judge observed obiter (and without the benefit of argument on the point) that it was "theoretically possible", depending on the evidence, that the plaintiff could argue that renvoi should be applied.
- I do not find this passage a compelling basis, either, for distinguishing the rationale of Millett J's remarks (which, of course, were not obiter, but directly on a point which was raised before him, albeit abandoned by the Court of Appeal stage). In any event, I find this passage in Cheshire & North difficult to reconcile with an earlier paragraph (on p. 66):
"If the English choice of law rule refers a disputed title to movables to the law of their situs at the time when the alleged title was said to have been acquired, it is probable that the court will apply the internal system of law that a court of the situs would apply in the particular circumstances of the case".
- This appears, if anything, to go against the Claimant's argument. It is somewhat ambivalent, I suppose, but on one view the "internal system of law" which a French court would apply would surely be its own domestic law (as the lex situs). Yet another curiosity is that the only authority cited for the point consists of the very same dicta in the judgment of Slade J (cited above) which were supposed (on p. 948) to lend tentative support for the opposite proposition. I therefore move on from Cheshire & North, unusually, without enlightenment.
- I can think of a number of reasons why it might be desirable to apply generally, in dealing with national treasures or monuments, the law of the state of origin but that is a matter for governments to determine and implement if they see fit. As Millett J himself observed (also at p. 1008):
"[The doctrine of renvoi] owes its origin to a laudable endeavour to ensure that like cases should be decided alike wherever they are decided, but it should now be recognised that this cannot be achieved by judicial mental gymnastics but only by international conventions".
- Accordingly, I determine the first question in favour of the Defendant. I hold that, as a matter of English law, there is no good reason to introduce the doctrine of renvoi and that title to the fragment should thus be determined in accordance with French domestic law.
The outcome according to French domestic law
- As I have indicated above, it is common ground that the general rule in French law is that title in respect of movable property should be determined by the lex situs where the object was situated at the material time (here, the relevant date being 10 November 1974). One would thus ordinarily expect a French judge to apply the relevant provisions of French domestic law. In particular, the provisions of the following articles of the Civil Code need to be applied (as translated into English):
Article 2229
In order to be allowed to prescribe, one must have a continuous and uninterrupted, peaceful, public and unequivocal possession, and in the capacity of an owner.
Article 2262
All claims, in rem as well as in personam, are prescribed by thirty years, without the person who alleges that prescription being obliged to adduce a title, or a plea resulting from bad faith being allowed to be set up against him.
Article 2279
In matters of movables, possession is equivalent to a title. Nevertheless, the person who has lost or from whom a thing has been stolen may claim it during three years, from the day of the loss or of the theft, against the one in whose hands he finds it, subject to the remedy of the latter against the one from whom he holds it.
- Since it is now conceded that, at all material times, the Defendant acted in good faith, she would not appear to have any need to resort to any title by prescription. She would be held to have acquired title by possession at the moment of transfer in November 1974. For that reason, I consider that the Defendant is entitled to succeed. (Yet for the sake of completeness I shall need to return to matters of prescription in answering other questions before me.)
The second issue: Would a French court apply Iranian law?
- I must, however, now turn to the second question remaining for determination. That has been formulated as follows:
In the event that it is held that the English court will apply the relevant substantive provisions of French domestic law as well as the relevant conflict of laws rules, would the French court determine the question of title to the fragment:
(1) (as the Defendant contends) by reference to French domestic law alone as the lex rei sitae (the law of the place in which the fragment as a movable was situated at the relevant time); or
(2) (as the Claimant contends) by reference exclusively to the law of Iran, in that the question of title to the fragment is to be determined by reference to the law of its state of origin:
a) since the fragment is a constituent part of a national treasure; and/or
b) since French law would have regard to a policy that questions of title in relation to illicitly exported artistic or cultural property is most appropriately to be determined by reference to the law of the state of origin;
c) since French law would regard the state of origin (Iran) as exclusively competent to determine the status of goods assigned to its activities as a public authority;
d) since the origin of artistic or cultural goods is a key element in the decision made by a prospective buyer to purchase them.
(3) (as the Claimant contends in the alternative) by reference both to the law of France and to the law of Iran with the consequence that the Defendant will not have acquired title unless authorised by both systems of law?
- It is right to record that I have received no evidence of the French or Iranian law as to renvoi. Mr Lowenstein submits that these are fundamental gaps in the reasoning advanced against him. I see the force of that, but will nonetheless proceed to address the merits of the argument on the basis of what has been deployed on either side through the experts.
- The Claimant's case is supported by the report of Maître Foussard. Although variously expressed at different times, his proposition appears to be that a French judge would apply Iranian law to the question of title to a fragment of this kind. It is accepted that there is no precedent for this. But he prays in aid the conventions to which I have referred and also certain legal writings.
- The suggestion is that a French court would give effect to the policy underlying the UNESCO and UNIDROIT conventions, to the effect that title to national treasures and works of art (such as would include the Persepolis fragment) should be determined in accordance with the law of the place of origin. Although the UNESCO convention has been ratified, neither of them is yet part of the law of France. I was shown a number of documents from which it may reasonably be inferred that this is not merely fortuitous, or a question of waiting until they come into force, but rather reflects serious concerns on the part of legislators. In particular, counsel drew my attention to the report by Monsieur Pierre Lequiller (who I am told is broadly equivalent to the President of the Law Commission in England) on the issue of whether to adopt the UNIDROIT Convention and also to some remarks made by Mme Catherine Tasca in Parliament (as Minister of Culture).
- What is beyond doubt is that the provisions of the conventions have still not been implemented in French law after a long period of time, and that there are a number of frequently canvassed arguments against doing so, for example as to the wide repercussions which would follow for public and private collections. These have been considered in Parliament and may at least have contributed to this course of sustained inaction.
- Despite these and other concerns, the proposal advanced by the Claimant is that a French judge would, nevertheless, not only give effect to the conventions as part of private international law but, moreover, develop the policy underlying them a good deal further even than would be the case if the conventions were adopted. Maitre Foussard did not demur.
- For example, neither of the conventions would be of retrospective effect and, therefore, even if implemented, would not adversely affect the Defendant's title in this case.
- Moreover, the UNIDROIT Convention contains (in Article 3) limitation provisions, including a "backstop" of fifty years from the date on which the object in question was ex hypothesi wrongly expropriated. That would place formidable hurdles in front of the Claimant if operative in this case, which it would be most unlikely to overcome. I note also that the Basle proposals of the Institut de Droit International (1991) also contemplate (at Article 4) that any claim by the country of origin would have to be made "within a reasonable time". The submission I am now addressing would entail the application of Iranian law without any corresponding time bar.
- Another term of the UNESCO and UNIDROIT Conventions would be that compensation would be payable to any innocent "owner" from whom the relevant object was to be repatriated. No such protection is contemplated in the rule proposed by Maître Foussard and it can thus be seen that it takes on a punitive or confiscatory character (which would in itself be likely to inhibit the courts in France and other jurisdictions from giving effect to it).
- It is inherent in Maître Foussard's proposed rule that it could be given effect by a country in which the relevant convention was not in force. By contrast, Maître Berlioz stated that it would be unimaginable that a judge would go against the negative decision of the legislature and give effect to such controversial proposals. There would be none of the balancing protections which any international agreement would certainly embrace (reciprocity, limitation periods, compensation, non-retroactivity, good faith, etc.) Moreover, as is obvious, these conventions have been around a long time without being incorporated into the law of France, and Maître Berlioz asked rhetorically why as a matter of judicial policy the hypothetical French court should suppose that the time has become ripe for their implementation in 2007.
- The scope of the change would be potentially very wide indeed, as I believe Maître Foussard recognised (and perhaps thought desirable). It would apparently mean that the transfer of virtually any "cultural object" or relevant work of art could be prevented in circumstances where the state occupying the territory of its origin had passed legislation to expropriate it – at least if the legislation had been passed before it was removed.
- It is against this background that Mr Lowenstein described the proposal as "startling". Indeed at one stage, in a rhetorical flourish, he had suggested that the effect "would be to empty the art galleries and private collections of France". At least it can be said that, if a French judge were to adopt the reasoning proposed, it would represent a significant shift from the position as it has always been thought to be in French law. In particular, it is clear from the French cases cited to me that the basic lex situs rule has been applied hitherto in relation to works of art or antiquities without any such exception being proposed. It was argued that it would be all the more inappropriate for an English judge (or indeed any other foreign judge) to appear to be taking such a bold and innovative approach without any French judicial precedent or legislative warrant.
- In this context, my attention was drawn to the words of Wynn-Parry J in Re Duke of Wellington [1947] Ch 506, 515:
"The task of an English judge, who is faced with the duty of finding as a fact what is the relevant foreign law, in a case involving the application of foreign law, as it would be expounded in the foreign court, for that purpose notionally sitting in that court, is frequently a hard one; but it would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction".
In this case, by contrast, there are no conflicting decisions. There simply have been none which directly support the Claimant's proposition.
- It is necessary to have in mind the nature of the exercise I am required to carry out. It is elementary that any decision of this court as to the substance of French law is only a finding of fact within this jurisdiction. Although Maître Foussard, when asked the question by Mr Lowenstein, responded courteously and diplomatically that an English judgment on the subject would be read with interest, it is right to remember that an English judge would in no way be making a decision of French law or intruding upon the French jurisdiction. It would simply be a decision about French law. Like Wynn-Parry J before me, I am carrying out a task required of me by English law with a view to determining the outcome in English litigation. I am only "notionally" sitting in a French court.
- Accordingly, if the evidence (including that of the experts) points clearly to a particular outcome according to French principles and methods of application, an English judge should not necessarily feel inhibited by the fact that no French judge happens to have reached such a conclusion in the past. The particular question, or the particular factual circumstances, may simply not have arisen hitherto. On the other hand, an English judge must tread with care when it appears that a particular result would not only be unprecedented but also involve the application of new principles, or a judicial development of French law, by the hypothetical French judge. A test I suggested in the course of argument was that I should do my best to assess the hypothetical French court's decision, in the light of established principles and methodology, but should draw back from determining the current state of French law by reference to policy changes which it would be open to a French court (at least a higher French court) to implement.
- I should not anticipate any such changes, since not only would that be presumptuous, but I should be exceeding my function – which is to determine, on the evidence, the relevant law of France as it stands. Whether it is appropriate to introduce into French law an exception to its choice of law rules, in the context of cultural objects, is a matter of policy for French judges to decide. They would no doubt have well in mind such considerations as those addressed by Gummow and Hayne JJ in Neilson (cited above) at [93]:
"What have come to be known as 'flexible exceptions' to choice of law rules are necessarily uncertain. That is the inevitable consequence of their flexibility. Experience reveals that such rules generate a wilderness of single instances".
- Since foreign law is approached in England as a matter of factual evidence, it would seem to accord with principle that I should ask myself whether I am satisfied, on a balance of probabilities, that a French court confronted with these facts and these submissions would be more likely than not to apply Iranian law in determining title. For the reasons identified above in [36]-[43] I am not so persuaded. I consider it highly unlikely. I hasten to add, it is not simply a question of impression. The evidence called for the Defendant was to the effect that no French judge, as the law now stands, would conceivably apply Iranian law.
- Maître Berlioz expressed an unequivocal opinion and stated that the question posed admits of a categorical and definitive answer in the light of domestic law and, in particular, by reason of Articles 2279 and 2262 of the Civil Code. He asserts that title to the fragment could not be questioned under French law by the Iranian government.
- He further states that Maître Foussard's contentions are entirely wrong and have no basis in French law; that he is putting forward a view as to what he feels French law or policy should be and not what the law actually is. He even went so far as to suggest that the principles of French law were being unethically misrepresented. Mr Lowenstein did not adopt or develop these observations. He did, however, suggest that Maître Foussard's analysis was "creative". I did not understand this to be an attack upon his integrity but rather a comment to the effect that he was advocating development in the law, by reference to various strands of academic argument, since there was no specifically judicial precedent (as Maître Foussard expressly accepted). I certainly found Maître Berlioz' assessment in this respect persuasive. I need go no further than to say that, in the light of the evidence before me, I am far from satisfied that a French judge would apply Iranian law. I resolve the second issue in favour of the Defendant also.
- I should add that strong criticism was made of Maître Berlioz by Mr Lazarus on behalf of the Claimant, and I was asked not to find him credible. There is no doubt that he expressed himself trenchantly on a number of matters about which, as he readily accepted, he felt strongly. I am not prepared to disbelieve him, however, although I find his evidence more persuasive on some points than others. There is no doubt that he lacked the gift of brevity; nor that he was ready to attack the credentials and integrity of others. But I did not conclude that this rendered his evidence unreliable in general. Specifically, on this second issue, I can find no cogent reason to reject the thrust of his expert opinion.
- Finally, on this issue, there was an argument canvassed on both sides as to the significance, or otherwise, of the well known principle of international law whereby states will not generally enforce foreign public law. I need not investigate this area of dispute since it is not necessary to do so in order to reach my conclusions. The argument ranged primarily over whether or not all of the relevant Iranian legal provisions would necessarily be characterised as "public law" and whether there would, in any event, be an exception recognised in French law in the context of "cultural objects" (to use loose and general terminology).
- I was referred in particular to a case of 2 May 1990 in the Cour de Cassation: Republic of Guatemala v Société Internationale de Négoce de Café et de Cacao. There was a decision, expressed in very general terms, to the effect that French courts can set aside the principle that jurisdiction will not be accepted where a foreign state makes a claim based on provisions of public law in circumstances "where, from the point of view of the court, the requirements of international solidarity or a convergence of interests so justify". No other examples of the principle being "set aside" were cited and I certainly cannot say with confidence that a claim for the return of a "cultural object" would so qualify. This is another example of the uncertainty inevitably attaching to "flexible exceptions" (see [49] above).
- I thus recognise that a French court might (a) classify this claim, if brought in France, as based on "public law", (b) decline to recognise any relevant exception, and (c) not accept jurisdiction to deal with it. My judgment proceeds, however, on a series of hypotheses – one of which is obviously that the French court has accepted jurisdiction. There is accordingly no need to pursue this interesting and theoretical debate to any kind of conclusion. For that I am especially grateful, since Maître Foussard recognised that this is an area of law which is in a state of flux.
The third issue: Is it a requirement of Article 2279 of the Civil Code that the Defendant's possession should have been "public"?
- The third issue I am required to resolve is a matter of French domestic law. It relates to whether the Defendant did acquire title on 10 November 1974, when she took possession, in accordance with Article 2279 of the Code. I am asked to determine, in the light of Article 2229 (set out above), whether she is required to demonstrate that her possession was "public" or whether that requirement has no application to a situation where title is asserted by possession under Article 2279. If I answer that question in the affirmative, I should then need to address whether indeed it has been shown by the Claimant that her possession was not "public". (I can express the issue thus, because it was conceded by Maître Foussard that the burden would lie upon the Claimant.)
- This seems to me a question of logic. The requirement that possession be shown to be "public" under Article 2229 corresponds closely to the notion of "nec vi, nec clam, nec precario" traditionally applied in the law of prescription under English law. It obviously relates, in this context also, to the acquisition of title by prescription and is thus directly relevant to Article 2262. In my judgment, however, both on the evidence and as a matter of logic, it can have no relevance or indeed any meaning in the context of Article 2279 ("En fait de meubles, la possession vaut titre"). That clearly specifically contemplates that possession, and thus also title, can be taken instantaneously. That is plainly what happened here. It makes no sense to apply criteria for the acquisition of a prescriptive title, over a period of time, to the quite different situation where title may be acquired instantaneously. In any event, the very words of Article 2229 make clear that its relevance is confined to the acquisition of title by prescription ("Pour pouvoir prescrire…). I have no doubt whatever that in accordance with Article 2279 the Defendant acquired title in the fragment by transfer of possession on 10 November 1974. Her good faith is conceded. (I have no doubt that, where good faith is in issue, it may sometimes be relevant in that context for a French court to enquire into such matters as "unequivocal possession" or furtive behaviour.)
The fourth issue: Would the Defendant's possession have been vitiated by clandestinity?
- The Defendant's alternative case is that she did indeed acquire title by prescription overt the 30 year period from 10 November 1974. In view of my primary conclusion, she does not need to place reliance on that argument. Nevertheless, I was asked to resolve a fourth issue which in my judgment can only be relevant to the alternative argument. I am asked to consider (again as a matter of French domestic law) what is meant by "public" under Article 2229.
- As I have made clear already, it is not my view that Article 2229 or its concept of "public" possession has any bearing upon the Defendant's primary (and successful) argument that title was obtained under Article 2279. That is why I say that this fourth issue is only relevant to her alternative case. Nonetheless, again for the sake of completeness, I will state my conclusions on it in the light of the evidence. The questions have been posed in these terms:
"4. Given that the fragment remained continually on open display in the living room of the Defendant's home in Paris at all times between November 1974 and January 2005, had the Defendant by 21 January 2005 acquired title to the fragment by the alternative route of prescription acquisition under the 30 year rule provided by Article 2262 of the Civil Code? The following issues arise:
4.1 Was the Defendant's possession of the fragment 'public' – i.e. open and not clandestine?
4.1.1 Is it necessary (as the Claimant contends) for the Defendant to show that she made her possession of the fragment reasonably apparent to the Claimant in order to demonstrate that her possession of the fragment was 'public' since:
(a) the vice of clandestinity is assessed through the eyes of the Claimant?
(b) a finding of clandestine behaviour is only avoided if the material acts of possession are carried out by the holder, openly, permitting a reaction from the true owner who brings the claim by action?
4.1.2 Or (as the Defendant contends) is it sufficient that the holder:
(a) does not dissimulate the acts of possession to the person against whom one intends to invoke the effects of the possession; and
(b) holds the property openly albeit in private premises?
4.2 Has the Defendant shown that her possession of the fragment was 'public' within the meaning of Article 2229 (or, if the burden is on the Claimant, has the Claimant shown that the Defendant's possession was not 'public')?"
- As was accepted in the evidence, and in argument, different considerations must come into play according to whether one is positively asserting acquisition by prescription, in order to establish a title, or whether one is relying (as here) on the rules of prescription by way of a shield against another's claim.
- Maître Foussard did not adequately reflect this distinction, and was thus drawn into imposing unrealistic criteria for resolving the clandestinity argument. The Defendant's possession of the fragment could not, he argued, be free of that "vice" (le vice de clandestinité) unless she had taken some positive steps in relation to it (subsequent to the public auction in October 1974). Pressed for examples, he suggested that she might have exhibited it, or published photographs or articles about it. I fail to see how that can possibly be a requirement of the law in circumstances such as these.
- Naturally, if someone has obtained an artefact knowing it to have been stolen from a particular source, or suspecting it, there may well be policy reasons for placing obstacles in the way of his acquiring a good title by secret possession. Here, by contrast, the Defendant's good faith having been conceded, she had no reason to keep the fragment she had bought under wraps, nor yet even to suspect that the then government of Iran had a claim to repossess it. There was obviously no question of dissimulation on her part or of any intention to deceive. It makes no sense that innocent purchasers of such objects should be required to go on for up to 30 years advertising the fact of their possession – just in case a third party at some stage decides to assert a claim.
- Accordingly, I find persuasive and readily accept the evidence of Maître Berlioz that there is no such requirement under French law. I hold that the Defendant's possession of the fragment was not vitiated by clandestinity, and thus I resolve the fourth issue also in her favour.
- My attention was drawn in this context to certain French case law. Great importance was attached by Maître Foussard to a decision of the Cour de Cassation on 9 February 1955, to which Maître Berlioz said he had given a wider significance than it could reasonably bear. It was, he suggested, of no special importance beyond the facts of the case itself. It was essentially concerned with applying Article 552 of the Civil Code, as the report makes clear. It addressed the occupation of a cellar which ran under another house. Article 552 embodies the principle of French law that the owners of a house are entitled to possession of what lies beneath it. It appears that the house owners (les consorts Dumets) had been unaware throughout the relevant prescription period of the adverse use of the cellar beneath (to which they had no direct access) by their neighbours (les époux Jacquemins). Thus it was held that the occupation of the cellar did not displace the primary rule.
- Maître Foussard relied on the case as stating a rule of wider application which would embrace the present case. The facts are, however, quite different. One of the distinctions to which Mr Lowenstein attached significance is that there the court was concerned with title to real property (immovables), whereas in this instance I am dealing with a movable item. It is relevant to address another French decision of 18 June 1959 concerning bearer bonds (also movable property) where it was held that possession had not been vitiated by clandestinity. They had been kept in a bank safe between 1939 and 1950 which might, in one sense, be thought to represent the antithesis of "public" possession. Yet it was nevertheless held that a good title had been acquired by prescription. There was a similar case decided on 8 March 2005.
- It is Maître Foussard's contention that, in the half century since the cellar case, bearer bonds represent the sole exception to the "principle" for which it is supposed to stand. Save in the case of bearer bonds, he says, a title cannot be acquired by prescription without the possession being publicly visible or accessible. I much prefer the analysis offered by Maître Berlioz.
- He suggests that there is nothing specific to bearer bonds. It is in the nature of some movable property that one may keep it and "use" it out of the public gaze. Bearer bonds are merely one example. Another might be a valuable necklace or a painting acquired for investment purposes. Possession over 30 years (especially possession in good faith) could lead to a good title by prescription without any public exposure of the item in question. Maître Foussard agreed that the court would need to be guided "above all" by the characteristics of the property and how it is normally used.
- I do not believe it would be a worthwhile exercise for me to set out and consider each of the French cases to which reference was made. Suffice to say that none of it undermined the cogency of Maître Berlioz' analysis of the criteria applicable to Articles 2279 and 2262.
The final outcome
- In the result, as I informed the parties at the conclusion of the case on 19 January, there will be judgment for the Defendant. I will hear argument as to any consequential matters and, in particular, whether it is necessary to order an enquiry as to damages flowing from the grant of the injunction by Silber J on 19 April 2005.
