No renvoi in Iran v. Berend (UPDATE)

The opinion in Iran v. Berend [2007] EWHC 132 (QB) has been released.

The dispute involved a fragment of an Achaemenid limestone relief from the city of Persepolis. This image, which I took from an organization called Cultural Heritage News, compares Berend's limestone, with the site in Persepolis. It makes for pretty damning evidence. The Cultural Heritage News agency is operated out of Iran, and I'm not sure where they get their funding, and their articles on this dispute strike me as a bit one-sided. Nevertheless, they did provide a good background to the dispute.

Denyse Berend purchased the limestone fragment in 1974. As the opinion states, "It was sold to her through an agent at a New York auction in October 1974." The object has been on display in Berend's Paris apartment since the purchase. Iran brought suit against Berend when she tried to sell it at an auction at Christie's London in 2005.

The dispute ultimately came down to which nation's law should apply to the dispute, France or Iran. Under Iranian law, the object would be returned, but under French law, the 30 year statute of limitations period had elapsed, and Berend would have clear title. Two conflicting private international law principles were at play here. First, is the lex situs doctrine which holds that the law of the location of the object at the time of the transaction should apply. Under that rule, French law would apply.

Iran wanted Justice Eady to apply the rule of renvoi, which would have dictated that Iranian law would apply. The renvoi choice of law principle occurs whenever a court is called upon to interpret the law of another nation. It has been applied to wills and some family law, though never to movable objects.

No English court has applied renvoi to movables, and it seams Justice Eady was reluctant to do the same in this case. According to Wikipedia, a recent Australian High court decision applied the rule in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). In that case, the Australian High Court applied the rule in a tort case. The plaintiff injured herself in an apartment in China. The apartment was overseen by her husband's employer, an Australian company. The court applied the law of Australia, because both parties to the suit were Australian. Applying the Australian court's logic to this case, it doesn't seem likely that the principle of renvoi would be applicable, and even in the Australian case, there seems to be a great deal of criticism of the decision.

Eady was understandably reluctant to go out on a limb and apply the principle in this case. As he said, "English law has held for many years, in order partly to achieve consistency and certainty, that where movble 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."

I wonder if Iran may choose to appeal the decision. In any event, though the limestone relief seems to have clearly come from Persepolis, Iran has no legal right to the object under English law. On a side note, there may be damages stemming from the grant of the original injunction against Berend's attempted auction of the object at Christies in London. One wonders why Iran did not pursue its claims in 1974, when the object was first sold. I wonder as well whether the 2005 auction had taken place in Christie's New York, rather than London, if the more generous statute of limitations provision would have allowed for a much different result.

UPDATE:

Over at the Journal of Private International Law's blog, conflictoflaws.net, Martin George has gone into some more detail on the choice of law implications at play in the decision. He rightly points out that an English court adopting a renvoi rule for movable property would have caused a lot of headaches. However, he misses the cultural policy implications: the limestone relief was almost certainly taken from Persepolis. The relief came from what is essentially the Persian Acropolis. In the event the ruling stands (which seems most likely) look for Iran to press for the return of the relief based on ethical principles. In any event, the potential sum the relief may bring at an auction seem quite diminished. I wonder if Berend and Iran may try to work out some kind of a settlement. It seems likely that quite a few potential purchasers have been scared away by the Iranian claims.

Postscript:

I have noticed a lot of folks are still interested in this case. For a much better and complex account of the decision you can download my case note published by the International Journal of Cultural Property here.