A federal appeals court has upheld the growing consensus that the Foreign Sovereign Immunities Act (FSIA) confers jurisdiction over foreign state actors in possession of art allegedly looted by and/or overseen by the Nazis. Upholding last year’s District Court decision, the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling in De Csepel v. Republic of Hungary that denied several Budapest museums’ motion to dismiss, while allowing the Republic of Hungary itself out of the case. This is the heirs second successful trip to the appellate court, where their claims were upheld in 2013. The case is the subject of a chapter in my newly-released book A Tragic Fate--Law and Ethics in the Battle Over Nazi-Looted Art (ABA Publishing).
Topics: FSIA, Foreign Sovereign Immunities Act, Baron Herzog, David de Csepel, Angela Maria Herzog, András Herzog, Hungarian National Gallery, Budapest Museum of Fine Arts, Budapest University of Technology and Economics, expropriation exception”, genocide, Thyssen-Bornemisza Collection, Welfenschatz, Stiftung Preussischer Kulturbesitz, SPK, Berlin, Federal Republic of Germany, Cassirer v. Kingdom of Spain
Expropriation Exception Saves Case, But District Court Holds Commercial Activity Exception Does Not Apply, Claims to Two of the Paintings at Issue are Dismissed as Well
The ongoing litigation between the heirs of Baron Mor Lipot Herzog and several state owned Hungarian museums has produced a new decision interpreting the scope of the Foreign Sovereign Immunities Act (FSIA), a frequent tool used to seek jurisdiction over Nazi-looted art claims brought in U.S. federal court. Relying on Supreme Court and D.C. Circuit cases in the last few months, the U.S. District Court held that claims for all but two of the paintings at issue can proceed under the FSIA’s “expropriation exception” codified in 28 U.S.C. § 1605(a)(3), but that the FSIA’s “commercial activity exception”—which the D.C. Circuit had held applicable in 2013 to the same case—could not be invoked based on the facts in the record developed in discovery. De Csepel v. Republic of Hungary, 2016 U.S. Dist. LEXIS 32111 (March 14, 2016).
Topics: David de Csepel, commercial activity exception, Hungary, Foreign Sovereign Immunities Act, Budapest University of Technology and Economics, Hungarian National Gallery, Budapest Museum of Fine Arts, expropriation exception”, Restitution, World War II
The DC Circuit Court of Appeals has reinstated the entire set of claims brought by the Herzog heirs against the Hungarian National Gallery, the Budapest Museum of Fine Arts, the Museum of Applied Arts, and the Budapest University of Technology and Economics. The appellate decision focuses on the claim that an agreement was reached after WWII to hold the paintings for their owners, not the claims relating to their wartime fate. In so doing, the court pushed to the side a whole range of defenses for sovereign defendants that have been increasingly successful. The court also reinstated claims to ownership of 11 works whose title was previously litigated, in an opinion that sets a low bar for collateral attacks on foreign judgments.
Topics: commercial exception, David de Csepel, Nazi Germany, Angela Maria Herzog, Hungary, WWII, Viktor Orban, res judicata, Julia Alice Herzog, Budapest University of Technology and Economics, Baron Mor Lipot Herzog, Hungarian National Gallery, Jori Finkel, Budapest Museum of Fine Arts, Adolf Eichmann, FSIA, expropriation exception”, Restitution, 28 U.S.C. § 1605(a)(2), 28 U.S.C. § 1605(a)(3), World War II, Foreign Sovereign Immunities, Alison Frankel, András Herzog, Janos Lazar, Museum of Applied Arts