Enforceability of Vesting Laws: Proceedings before the Belgian Courts

de Clippele, Marie-Sophie [FUSL] Lambrecht, Lucie [LambrechtLawOffice]

The enforceability of “vesting laws” – legislation which seeks to vest ownership of antiquities in the nation from which they originated – has once again become the subject of a court decision, this time in Belgium. Readers will be familiar with the decisions of the US courts in Hollinshead, McClain and Schultz and the English Court of Appeal in Barakat. These decisions, all from common law jurisdictions, recognise the enforceability of such laws where the antiquities are being traded overseas. Arguments that such items do not fit the US definition of “stolen property” have been rejected, as have arguments that the recognition of such legislation would amount to enforcing a penal or public law, which is not justiciable in foreign court. In the recent proceedings before the Belgian courts the Islamic Republic of Iran sought the return of 349 objects which had been brought into Belgium in 1964 by a French-Belgian collector in the case of a Belgian diplomat. The collector had, at that time, been married to an Iranian physician named Maleki, and had acquired the objects while based in Teheran, partly through local excavations and partly from local dealers. The factual scenario in this case was extremely complicated. Suffice to say here, the Brussels Court of Appeal found against Iran on the basis that its title to the objects had expired. This decision was quashed by the Court of Cassation and referred for decision back to the Liège Court of Appeal which held that the objects should, notwithstanding the passage of 50 years, be returned to Iran. The Court found that Mrs Maleki had failed to prove that she had acquired the objects lawfully, and that Iran had, under the terms of its legislation, established ownership of the objects. This reasoning was in direct contrast to that of the Brussels Court of Appeal which had held that the Iranian law on which the claim was based was basically of a penal nature and sought to enforce Iranian confiscation measures, rather than directly conferring ownership rights on the Iranian State. The Liège Court’s decision, while in stark opposition to the findings of the Brussels Court, fits the trend of common law cases such as Schultz and Barakat which have upheld such vesting statutes.