The dispute before the California courts between the Thyssen-Bornemisza Foundation and the descendants of Lily Cassirer Neubauer has now entered its second decade. Neubauer was forced to sell a painting by Pissarro before fleeing Germany in 1939 and her heirs now claim that it should be returned to them from the Spanish Foundation, the painting’s current possessor. The action brought in the US District Court in 2005 named both the Foundation and Spain as defendants.
Without getting into the details of the case, which are helpfully provided by Kevin Ray here, the case raises a number of interesting private international law issues, most notably regarding conflicts of laws. Which law should apply to the very important question of limitation (or the Euro-flavoured acquisitive prescription)? Here we have a stark contrast between the law of California, which favours the original owner, and that of Continental European countries, which favour the good faith purchaser. Were Californian law to apply, the limitation period would begin with the discovery by the heirs of the location of the painting and the identity of its possessor (in this case, 2001) and would run for six years. Were Spanish law to apply, the rules of acquisitive prescription would allow a purchaser to obtain title after (at most) six years from the date of purchase (in this case, 1976).
In a recent decision from 4 June the US District Court ruled that Spanish law, not Californian law, would apply to the matter. This is a big setback for the Cassirer heirs – perhaps an insurmountable one. But for our purposes it shows the importance of these often complex conflict of law rules in matters of art restitution. Because of the varying limitation/prescription rules in different jurisdictions, the applicable law will often determine the outcome of the case. For obvious reasons US law is favourable to those representing original owners of art, and so the US becomes an attractive jurisdiction for bringing a claim. But, as this decision highlights, grounding jurisdiction in a place is one thing, having the local laws apply is another. Here the US Court has resoundingly opted for Spanish law.