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Nazi-looted art case asks Supreme Court how to hold foreign states accountable

Once presumed lost forever, a French impressionist painting stolen by the Nazis is now at the center of an international tug-of-war on the steps of the Supreme Court. 

WASHINGTON (CN) — Over 80 years after a French painting was stolen by the Nazis, a family fighting for its return will get a high court audience on Tuesday in a nearly two-decade-old legal fight over sovereign immunity. 

As a Jewish woman living in 1930s Germany, Lilly Cassirer used a Camille Pissarro painting to save her life. The Nazis agreed to give Cassirer and her family safe passage out of the country if she agreed to “sell” them “Rue Saint-Honoré in the Afternoon, Effect of Rain.” The money she exchanged for the painting — around $360 — was put in an account she could never access. 

Lilly never saw the piece again, as it quietly changed hands with buyers in California and New York City before returning finally to Europe. In 1993, the Thyssen-Bornemisza Collection Foundation together with Spain purchased an art collection — including the French painting — for $350 million. 

Claude Cassirer — Lilly’s grandson who survived the Holocaust — was familiar with his grandmother’s painting because it hung in the parlor where he would play as a child. So in 2000, when Cassirer discovered the painting is on display at the Thyssen-Bornemisza Museum in Madrid, he sent a petition to Spain asking for it to be returned. Spain denied his request, however, forcing Cassirer to sue to attempt to get the painting back. 

Cassirer asserted property-law claims for constructive trust, conversion and possession of the painting. He asked for a declaration statement that he owned the painting and has the right to its return. 

In order to establish subject matter jurisdiction over the suit, Cassirer invoked the Foreign Sovereign Immunities Act of 1976. FSIA is the sole basis for jurisdiction in a civil suit against a foreign state, but the law has exceptions, one of which Cassirer attempted to use in his case. The expropriation exception says foreign states can not be immune from jurisdiction if property is taken in violation of international law. Cassirer found this relevant to his case because Nazis had taken the painting in violation of international law. 

Finding that it had jurisdiction under FSIA, a district court advanced the heir's suit against the foundation and Spain. Later, after en banc rehearing, the Ninth Circuit affirmed that Cassirer had jurisdiction but Spain was dismissed from the case. 

The district court then used a set of rules used to select which jurisdiction’s law applied in the lawsuit — known as the choice-of-law rules — concluding that Spanish law would be used. Using the Spanish version of adverse possession — sometimes colloquially described as squatter’s rights — the district court found that the foundation was the lawful owner of the painting. 

On the understanding that the foundation knew the painting was stolen, the Court of Appeals reversed and remanded. The district court found the opposite, however, after a bench trial, ruling that the foundation did not have knowledge that the painting was stolen and therefore was the rightful owner. This time, the Ninth Circuit affirmed. Cassirer then petitioned the high court, which agreed to hear the case in September of last year. 

The case before the high court has to do with what the proper choice-of-law test to apply when using FSIA. There is a circuit split between the Ninth Circuit, which applied federal common law’s choice-of-law test, and the Second and D.C. Circuits, which used the forum’s choice-of-law test. 

“The lower courts applied Spanish law despite the fact that relevant provisions conflict with the law and public policy of California — the Cassirers’ home for more than 40 years, the forum state, and the place to which the Painting was first transferred out of Germany 70 years ago — as well as numerous international agreements and conventions concerning Nazi-looted art,” Cassirer’s brief states. 

According to the foundation, the forum’s test allows the court to strip a foreign state of its presumptive sovereign immunity. 

“Petitioners and the non-governmental amici advocate for application of the forum’s choice-of-law test for one simple reason: they believe that the federal common law choice-of-law test is more likely to recommend the application of foreign law and they want California law to apply,” the foundation argues in its brief. 

In a friend of the court brief, the U.S. government warned the case would have implications for how the U.S. is treated in foreign states. They argue that FSIA suits not based on federal law should use choice-of-law questions governed by state law. 

“Because using different choice-of-law rules can sometimes lead to the selection of a different rule of decision that would affect the existence of and extent of liability, the only way to ensure that a foreign state is held liable ‘in the same manner and to the same extent as a private individual,’ as required by 28 U.S.C. 1606, is to apply state choice-of-law rules,” the government’s brief states. 

The 1939 Society, American Jewish Committee and other groups filed a friend of the court brief arguing that, in cases of Nazi-looted art, the relationship of the parties is essential to determining how the art should be treated. The groups cite international conferences that have been convened specifically on the issue of Nazi stolen art and how countries have decided to settle these disputes. 

“The international norm, which is now part of international customary law, is that claims involving Nazi-looted art against museums worldwide must be resolved fairly and justly, with the goal of resolving such claims on their merits rather than on the basis of technical procedural rules and defenses,” the groups wrote in their brief. 

While acknowledging that the agreements are not as binding as international law, the groups urge the court to take them into account when deciding the case. 

“Amici therefore urge this Court to recognize the specific interests at the heart of this case and the unique nature of the property and thereby apply the local law of the California forum, which would lead to the return of the Painting to its rightful owner,” the group argued. 

Sarah Erickson Andre, an attorney at Nixon Peabody representing the foundation, declined the comment ahead of arguments in the case. David Boies, an attorney at Boies, Schiller & Flexner representing Cassirer, did not respond to requests for comment.

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