Claim Alleging Derivative Possession of Good Allegedly “Taken” in Violation of International Law Still Precluded by FSIA

Claim Alleging Derivative Possession of Good Allegedly “Taken” in Violation of International Law Still Precluded by FSIA


by Louis M. Solomon

We discuss briefly the final installment (in the District Court) of the attempt to recover possession of a Van Gogh drawing allegedly sold away from the plaintiff's great-grandmother "under duress during the Nazi era in Germany for fraction of its fair value", Orkin v. The Swiss Confederation, 09 Civ. 10013 (S.D.N.Y. Mar. 2011) (LAK). An earlier dismissal in the case is discussed here. The District Court permitted the plaintiff a last chance to plead claims. The international practice rulings in the final decision, which dismisses the complaint for want of subject matter jurisdiction, include the following:

First, the District Court summarized the plaintiff's claim as one complaining that someone in German took advantage of the great-grandmother's plight and desperation as a Jew in Nazi Germany to purchase the drawing at an artifically low price and, years later, "donated or bequeathed the drawing to one of the defendants". The difficulty in the plaintiff's case continues to be that the Foundation sued never possessed the painting and so "would not be a proper party defendant to this action, quite apart from questions of jurisdiction".

The District Court also addressed the Foreign Sovereign Immunities Act issue on the assumption that the Swiss Confederation is a foreign state and the Foundation was "among its agencies and instrumentalities". The Court could not find any applicable exception to the FSIA, which is the possible only source of subject matter jurisdiction. In order for the takings exception to the FSIA to apply, the plaintiff must allege acts of "a sovereign, not a private enterprise, that deprive a plaintiff of property without adequate compensation". A taking would exist "only where the property at issue passed in the first instance from the plaintiff - or, as here, the plaintiff's predecessor - to a sovereign or to some person or entity acting on a sovereign's behalf". That critical link was missing in this case.

The District Court recognized that other suits existed where property initially taken or expropriated by other sovereigns then finding their way into the hands of the sovereign defendant (we have posted on the most recent of those Court of Appeals cases, Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010)), which the District Court here distinguished and in any event said were not "binding on this Court".

Finally, the District Court refused to ground jurisdiction in the Alient Tort Statute for the claimed violation of international law. The specific defendants in this case were "alleged to have done nothing more than accept a bequest or donation of artwork from a collector who purchased it, however opportunistically, many years prior".

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