Renvoi Doesn’t Help Get Artefacts Back

There is an interesting article by Derek Fincham J.D., currently a Ph.D. student at the University of Aberdeen in Scotland on a recently failed attempt to use the doctrine of renvoi to facilitate return of illegally taken artefact to the source country.

In short, a fragment of an ancient relief was taken from Iran between 1932 and 1974, at which point it was purchased by an unwitting French collector at a New York auction. In 2005, she attempted to sell the relief at Christie’s in London, at which point Iranian government got involved, filed a claim alleging title to the relief, and obtained an interlocutory injunction restraining the sale. Having conceded that under English and French law the relief was movable property to which lex situs (i.e. French law) applied, Iran’s chief argument was that English court should apply renvoi. Not only did it argue that the English court should apply the French conflict of law rules, but also that such rules, or more particularly the public policy behind them, would cause a French court to apply Iranian patrimony laws and thus order the return of the relief. Unfortunately, Iran could cite no precedents to bolster its position. In fact, it faced problems from the perspective of both legal systems, English and French.

On the English side, English courts never applied renvoi to movable property, and although the trial judge thought that “there may be a number of reasons why it may be desirable to apply generally, in dealing with national treasures or monuments”, he firmly concluded that this issue falls within the legislative rather than adjudicative province. On the French side, although Iran being short of precedent argued that the spirit of French law would dictate that the law of source nation would apply, its argument was belied by the fact that the conventions and treaties on cultural property to which France was a party and in which such spirit could potentially be found have not been expressly incorporated into French law.

Ultimately, Mr. Justice Eady did not want 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.

…

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 [Macmillan v Bishopsgate Investment Trust plc (No3) [1995] 1 WLR 978] (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.

Although unfortunate for Iran, I think that Mr. Justice Eady’s conclusion makes sense: the renvoi argument was much to weak to succeed, However, I think that if France had integrated those conventions into its law, the question of renvoi would have been moot as the reference to the law of the nation from where the cultural property was illicitly removed to determine the ownership of said cultural property would have properly been part of French private law, rather than its conflict of law principles. In other words, I think that rather than transmitting the entire issue of ownership to foreign law, domestic law would simply incorporate by reference the relevant portions of foreign law dealing with ownership of cultural property.

 

I also note a related case, where Mr. Justice Gray held that under English conflict of laws principles, Iranian laws determining the ownership of cultural property cannot be applied by English courts because they are properly characterized as “public laws”.