An interesting case came down last month from the High Court in London in the matter of Jeddi v Sotheby’s. The case was brought by an Iranian antiquities dealer named Ali Jeddi against Sotheby’s UK for refusing to return his property, a 10th century Fatimid jar made of translucent quartz and finely decorated with images of birds and vegetation. Sotheby’s eventually interpleaded the man who had consigned the piece for auction, another Iranian named Ali Pishvaie. The ultimate dispute would be fought between Jeddi and Pishvaie and, although Sotheby’s name appears in the title of the case, the auction house had very little to do with it.
The facts were somewhat convoluted, but the case was essentially an ownership dispute over the jar between the two men, with Jeddi arguing that he had given the jar to Pishvaie who acted as his agent in bringing it to Sotheby’s in London for examination and sale, while Pishvaie claimed the piece had been in his family’s antiquity collection since as far back as the 1950s. The judge found in favour of Jeddi on this point and, though the evidence was not entirely clear, concluded that on a balance of probabilities Jeddi’s story was more likely than Pishvaie’s. Because the jar was found to belong to Jeddi, and Pishvae had been acting as agent, Jeddi was free to revoke the agency agreement at will and demand the jar back, which is what he did.
One particular element of Pishvaie’s story that seemed suspect was that the jar had apparently been with his family in Europe since 1969. A date that fit so neatly beyond the cut-off date of 1970 stemming from the UNESCO Convention seemed a little too convenient. In fact, the judge had a thing or two to say about the UNESCO Convention, recognising quite rightly that, though the famous 1970 date is by no means a legally-enforceable standard, when it comes to the trade in antiquities, it has set a widely-accepted threshold followed by most of the major players in the art and antiquities world:
‘It was common ground that the year 1970 has come to occupy a special place for those engaged in or affected by the trade in cultural heritage… What is significant for present purposes is that the date of 1970 has been taken by very many museums, as well as by auction houses, reputable dealers and institutions as a “cut-off” date for the investigation of provenance. What this means is that such museums, dealers and institutions will not deal in or acquire antiquities unless they have a known provenance dating to 1970 or before… [If] an item which might have derived from the Middle East does not have provenance indicating that it has been in Europe since before 1971 it would be very difficult to sell on the London market.’ (paras 55-56)
Though the point is clearly obiter (it’s not part of the actual decision in the case), it is a strong endorsement by an English judge of the Convention’s ‘soft law’ impact. It is reminiscent of the words of Lord Philips from the 2007 Court of Appeal case of Iran v Barakat (who said the Convention and similar international instruments ‘illustrate the international acceptance of the desirability of protection of the national heritage’ at para 163): each is an important judicial explanation of the effect, whether at an institutional or national level, of this pre-eminent international cultural property instrument.
For those interested in learning more about the 1970 UNESCO Convention, the IAL has recently published international legal expert Patrick O’Keefe’s third edition of his commentary on the Convention, entitled ‘Protecting Cultural Objects – Before and After 1970‘ (2017).