For just over one hour on Tuesday 18^th January, the Justices of the U.S. Supreme Court heard oral argument centered on procedural issues that will decide the next steps in the protracted case involving a Camille Pissarro masterwork.[1] The painting, Rue Saint-Honoré, après-midi, effet de pluie, is currently held by Spain in its Thyssen-Bornemisza Museo Nacional, which is self-described as “Everyone’s Museum”. Yet, since 2005, the Foundation that manages the Museum has rebuffed one particular group of individuals – the family of Lilly Cassirer, a Jewish collector who ‘sold’ the Pissarro painting at issue in this case in 1939 Germany. This week’s oral argument is yet another step in over fifteen years of litigation between the Cassirer heirs who have sought return of the Pissarro and the Spanish-controlled Foundation that has expended great resources to retain the approximate $30 million treasure. The saga has taken many twists and turns and you can read more about how the case came to arrive at the doors of the U.S. Supreme Court in previous blog posts.

The issue to be decided by the Supreme Court relates solely to a rather technical question of choice of laws, a crucial point in this case. It was the application of Spanish law, with its rules of acquisitive prescription, that had resulted in a decision that the Spanish Foundation was the rightful owner of the painting. The claimants argue that Californian law (much more likely to favor a claimant in these circumstances) should be applied, and it is the question of how the proper choice of law rules are to be determined which the Supreme Court must now decide.

Readers may recall that the Foreign Sovereign Immunities Act (“FSIA”) is central to the case because the Spanish Foundation, as an ‘instrumentality’ of Spain, could only be sued in a US court if one of the FSIA exceptions applied. The general presumption is that foreign states and their instrumentalities are immune from suit, but the FSIA allows cases against them to go ahead in certain specified circumstances. These include where property is taken in violation of international law, and this is the exception which applied in the present case.  In very short summary then, the question now before the Supreme Court is whether the relevant FSIA provision requires the court to apply the choice of law rules of the state of California to determine what substantive law should govern the case, or whether it should apply federal common law. The state and federal rules to determine the choice of law differ, so the answer to this question matters deeply.

The argument commenced with David Boies, counsel for the Cassirer heirs, who centered on a few “simple propositions” regarding the FSIA and choice of law. Namely, Mr. Boies argued that Section 1606 of the FSIA,[2] the provision which comes closest to a choice of laws direction for an FSIA exception case, is “clear on its face” and requires the Foundation to be treated as a private individual who has engaged in commercial activity. This would result in the application of state choice of law rules.

Thaddeus Stauber, counsel for the Foundation, advocated for a “uniform” federal common law choice to avoid “disparity of treatment” for foreign states that arguably might occur under state choice of law. Requiring state choice of law in expropriation exception cases, according to Mr. Stauber, would be akin to “handcuffing” federal judges, disabling them from taking federal international concerns into consideration.

As reported here previously, this suit has been a protracted series of ups and downs despite both parties agreeing that the Pissarro was looted from Ms. Cassirer by the Nazis. The case’s appearance on the Supreme Court’s current docket is due to the heirs’ resolution to appeal an adverse decision by the U.S. Court of Appeals for the Ninth Circuit. The appellate court had affirmed the decision of the California district court that found ownership of the painting belonged to the Foundation under an application of Spanish law.

To date, the Thyssen-Bornemisza Museo Nacional lists the Pissarro painting on its website with a link to a recitation of the facts about this case. That recitation is devoid, however, of reference to the Court of Appeals’ moral concerns that the Kingdom of Spain would “preen as moralistic in its declarations” as signatory of international agreements such as the Washington Principles that call for expedient action to be taken for return of looted property where, as here, the pre-World War II owner or their heirs have been located.[3]

The Supreme Court’s decision is expected mid-summer.

[1] Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566.

[2] 28 U.S.C. Section 1606, Extent of Liability: As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances […].

[3] Cassirer v. Thyssen-Bornemisza Collection Foundation, No.19-55616, 17 August 2020 Memorandum, Docket No. 62-1 at 9, FN3.

Image: Camille Pissarro, Rue Saint-Honoré, après-midi, effet de pluie (1897); credit: ©Wikimedia Commons