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Picasso in Spain and California Courts
Plaintiffs, alleging expropriation of art by Nazi Germany, may rely for subject matter jurisdiction of United States courts on 28 USC §1605(a)(3) even if they seek to recover the art from another nation.
On September 8, 2009, the United States Court of Appeals for the Ninth Circuit decided in Claude Cassirer v. Thyssen-Bornemisza Collection Foundation, docket number 06-56325, that the expropriation exception of the Foreign Sovereign Immunities can apply to a state and its foundation that have not been involved in the expropriation.
In addition, the court explored whether the required commercial activity of the defendants King of Spain and the Thyssen-Bornemisza in the United States suffice to meet the definition in 28 USC §1604(d). In relying on Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (1992) and Altmann v. Republic of Austria, 317 F.3d 954 (2002), the court upheld the lower court's finding of commercial transactions by the art foundation as generating a sufficient nexus.
Based on limited jurisdictional discovery, the district court had concluded that the foundation transacted business as a purchaser and a seller of goods and services and as an advertiser in distributing marketing and other commercial materials in the United States.
The appellate court concluded its analysis with a detailed discussion of the exhaustion requirement, developed for Alien Tort Statute litigation, as applied to FSIA matters. Its remand to the district court includes instructions for a further analysis of the case in light of a limited exhaustion requirement to be imposed on the plaintiff. As a result, the plaintiff may need to pursue claims in Spain or Germany, not in the United States, if the district court so decides.
Judge Ikuta's minority opinion takes exception to writing a judge-made exhaustion requirement into the FSIA. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link