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When applying
foreign law to a dispute, the English court should not anticipate new
principles; public policy did not require English private international
law to introduce the French notion of "renvoi" into the determination
of title to moveables
The claimant state,
Iran, sought to recover from the defendant a fragment of a limestone
relief, which was part of a national monument to which it claimed entitlement.
The fragment consisted of the head and shoulders of a Persian guardsman,
which originated from the fifth century B.C. and had laid buried until
excavation of the ancient city of Persepolis in the early 1930s. B had
bought the fragment at an auction in New York in 1974, and it had then
been delivered to her in Paris where she displayed it in her home.
The fragment had
been due to be sold by an auction house in London in April 2005, but
Iran was granted an injunction preventing sale pending its claim. It
was common ground between the parties that the dispute was to be resolved
on the basis that the fragment had been the property of Iran immediately
before its export; that, as a matter of English and French law the fragment
was moveable property; that if, as a matter of French law, Iranian law
governed the question of whether the defendant's acquisition of possession
conferred title on her, Iran retained title to the fragment; that the
general rule in French law was that title to a moveable object was governed
by the "lex situs", the law where the object had been situated
at the time of the event said to confer title; and that there were no
reported decisions in the French courts addressing the proposition whether
the "lex situs" rule would be declined in relation to a constituent
part of a national treasure.
The defendant contended
that as she had taken possession of the fragment in good faith, on delivery
in Paris in 1974, and at that moment had obtained good title in accordance
with the French civil code, the English conflict of laws rules dictated
that French law governed the question of title to the fragment. Iran
submitted that the English court could not simply apply French domestic
law, but should also apply the French conflict of law rules (the doctrine
of "renvoi"- the reference of a matter involving a conflict
of laws to the law of the foreign jurisdiction involved, including reference
to that jurisdiction's rules governing conflicts of laws), and 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) on the basis that the fragment should be regarded
as artistic or cultural property.
It was held, giving judgment for the defendant, that there was no binding
authority to the effect that English private international law would
apply the doctrine of "renvoi" to questions of title to moveable
property. Whether or not it should apply in any given circumstances
was largely a question of policy, and public policy would not require
English law to introduce the notion of "renvoi" into the determination
of title to moveables. Macmillan Inc v Bishopsgate
Investment Trust Plc [1995] 1 W.L.R. 978 was considered. Title
to the fragment would thus be determined in accordance with French domestic
law. In the circumstances, under French law, the defendant had acted
in good faith when she acquired title by possession at the moment of
transfer in 1974.
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