U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in cases involving Nazi looted art. The Supreme Court ended what had been a judicially created exception to foreign state immunity for genocide, refocused attention on whether the victim of property expropriation had been a de facto citizen, rather than a formal one for purposes of the statute’s domestic takings exception, and decided that there is no federal common law applicable to FSIA conflict of laws cases. The D.C. Circuit reaffirmed prior caselaw that the FSIA does not require exhaustion of local remedies in a decision supported by both the statute and international customary law, but leaving a potential inter-circuit conflict if the Seventh Circuit should reaffirm its contrary prior caselaw. In an opinion difficult to reconcile either with the FSIA’s express terms or with precedential authority, the D.C. Circuit also decided to increase the difficulties to obtaining jurisdiction against a state, as opposed to a state instrumentality.
Vivian G. Curran,
Nazi Stolen Art: Uses and Misuses of the Foreign Sovereign Immunities Act,
Transnational Law & Contemporary Problems
Available at: https://scholarship.law.pitt.edu/fac_articles/550
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