#5230 - Ag Of New Zealand V. Ortiz - Conflict of Laws BCL

AG of New Zealand v. Ortiz

Facts

This great door was lost for centuries in a swamp near Waitara in the province of Taranaki in North Island. Then in 1972 a Maori tribesman called Manukonga, whilst cutting a track through the swamp, came upon it and carried it to his home.

In the next year, 1973, there came to New Zealand Lance Entwistle, the third defendant. He was from London and was a dealer in primitive works of art. He got to know of this carving and went to see it. He realised at once that it was of much value. It was of the highest importance to the study of Maori art and civilisation and Polynesian sculpture. He persuaded Manukonga to sell it to him for the sum of $6,000. He took it up to Auckland and then across to New York.

George Ortiz went to New York to see it. Lance Entwistle told him that it had been exported from New Zealand without a permit but nevertheless he was the owner of it and could pass a good title to it. Thereupon, on April 23, 1973, George Ortiz bought this carving from Lance Entwistle for U.S. $65,000. It was sent to Geneva by air and was kept by George Ortiz in his collection there. In October 1977 the daughter of George Ortiz was kidnapped. In order to raise money for her release, he sent his art collection to Sotheby's, the second defendants, in London for sale by auction. Sotheby's prepared an attractive catalogue. It contained a fine coloured picture of this carving. It was the principal item in the sale. Sotheby's announced that the auction was to be held on Thursday, June 29, 1978.

This came to the notice of the New Zealand Government. Their Attorney-General at once on June 26, 1978 - three days before the sale - issued a writ claiming a declaration that this carving belonged to the New Zealand Government and an injunction to prevent the sale or disposal of it.

Questions

(1) Whether... Her Majesty the Queen has become the owner and is entitled to possession of the carving... pursuant to the provisions of the [New Zealand] Historic Articles Act 1962 and the Customs Acts 1913 and 1966;

(2) Whether in any event the provisions of the said Acts are unenforceable in England as being foreign penal, revenue and/or public laws.

Holding

Lord Denning

No Automatic Seizure

I do not think the change of wording in section 274 imputes any change in sense from section 251 of the Act of 1913. Section 274 shows that the important thing is seizure. When it says that "the forfeiture shall for all purposes relate back." that means that the forfeiture does not operate automatically. The phrase "relate back" shows that the title does not accrue until the seizure, and that it then relates back to the cause of forfeiture. In short, it is another affirmation of the principle in Lockyer v. Offley, 1 T.R. 252.

“Other Public Laws” – separate category?

This present case is different. It is a suit by a foreign state brought in the English courts here to enforce its laws. No one has ever doubted that our courts will not entertain a suit brought by a foreign sovereign, directly or indirectly, to enforce the penal or revenue laws of that foreign state. We do not sit to collect taxes for another country or to inflict punishments for it. Now the question arises whether this rule extends to "other public laws." Dicey & Morris, The Conflict of Laws , 10th ed. (1980), vol. 1, p. 90, rule 3 say it does. I agree with them. The term "other public laws" is very uncertain. But so are the terms "penal" and "revenue." But what are "other public laws"? I think they are laws which are eiusdem generis with "penal" or "revenue" laws.

Scope of “other public laws”

Then what is the genus? Or, in English, what is the general concept which embraces "penal" and "revenue" laws and others like them? It is to be found, I think, by going back to the classification of acts taken in international law. One class comprises those acts which are done by a sovereign "jure imperii," that is, by virtue of his sovereign authority. The others are those which are done by him "jure gestionis," that is, which obtain their validity by virtue of his performance of them. The application of this distinction to our present problem was well drawn by Dr. F. A. Mann years ago in an article "Prerogative Rights of Foreign States and the Conflict of Laws" in Transactions of the Grotius Society (1954) 40 Tr.Gro.Soc. 25, reprinted in his Studies in International Law (1973), pp. 492 to 514.

Applied to our present problem the class of laws which will be enforced are those laws which are an exercise by the sovereign government of its sovereign authority over property within its territory or over its subjects wherever they may be. But other laws will not be enforced. By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority.

Cases - Recognition or Enforcement

Don Alonso v. Cornero:

As to the goods, the judges said, Hob. 212:

“if any subject of a foreign prince bring goods into the kingdom, though they were confiscate before, the property of them shall not here be questioned but at the common law.”

As I understand it, that means that the courts of this country would not enforce the forfeiture. Our courts would not enforce the title claimed by the Spanish King. Our courts of "common law" would enforce a possessory title by trespass or trover, but this would not avail the King of Spain because he never had possession.

The confiscation was an act done in the exercise of sovereign authority outside the territory of Spain - it was done on the high seas. So our court would not enforce it. So also when many centuries later the Spanish Constituent Cortes passed a decree confiscating all the private property of the ex-King, it was held that it would not be enforced against his property in England.

Princess Paley Olga v. Weisz

The confiscation by the Soviet Government was an exercise of sovereign authority within its own territory. It would therefore be enforced in England. If the Princess had removed the articles from the museum in St. Petersburg and brought them to England, the English courts would have made her give them up to the Soviet Government.

Brokaw v. Seatrain U.K. Ltd.

The notice of levy was an act done in the exercise of sovereign authority. It was not done in the territory of the United States but outside it. It would not be enforced by our courts. But if the United States Government had actually reduced the goods into their possession in the United States, that act would have been done within its own territory. It would therefore have been enforced in our courts.

Application to facts

Returning to our present case, I am of opinion that if any country should have legislation prohibiting the export of works of art, and providing for the automatic forfeiture of them to the state should they be exported, then that falls into the category of "public laws" which will not be enforced by the courts of the country to which it is exported, or any other country, because it is an act done in the exercise of sovereign authority...