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).
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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
After putting on hold its prior recommendation back in March of this year, the United Kingdom Spoliation Advisory Panel has recommended that the Tate Gallery in London should return Beaching a Boat, Brighton by John Constable to heirs of Budapest-based (and Jewish) Baron Ferenc Hatvany. The Art Newspaper reports that the Spoliation Panel concluded that the 1946 export license at issue in the springtime uncertainty (located from the Budapest Museum of Fine Arts) was insufficient to overcome the conclusion that title to the looted painting had not passed lawfully.
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Topics:
John Constable,
Soviet,
Budapest,
Worcestershire,
Hungary,
London,
The Art Newspaper,
Beaching a Boat Brighton,
Nazi-looted art,
Red Army,
Mrs P.M. Rainsford,
Broadway Art Gallery,
Budapest Museum of Fine Arts,
Restitution,
World War II,
Baron Ferenc Hatvany,
Tate Gallery,
Museums,
United Kingdom Spoliation Advisory Panel
After the 1998 Washington Conference on Holocaust Era Assets and the eponymous Washington Conference Principles on Nazi-Stolen Art that came out of it, it is hardly surprising that a recurring theme has been to assess the progress of those nations that participated and signed on. Equally unsurprisingly, those assessments are usually more anecdotal than empirical, and usually arise out of a particular case or cases in the context of that country’s response.
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Topics:
Graham Bowley,
Macedonia,
Netherlands,
Terezin Declaration,
Mussolini,
Latvia,
Dr. Wesley A. Fisher,
Hungary,
ICOM,
Bulgaria,
Commission for the Compensation of Victims of Spol,
Germany,
Bavarian Minister of Culture,
Nazi-looted art,
Die Welt,
Belarus,
Lex Gurlitt,
Washington Conference on Holocaust Era Assets,
France,
Dr. Ruth Weinberger,
Romania,
Baron Mor Lipot Herzog,
Winfried Bausbeck,
Belgium,
Slovakia,
Vichy,
World Jewish Restitution Organization,
Bundesrat,
Washington Conference Principles on Nazi-Stolen Ar,
Gurlitt,
WJRO,
NS Raubkunst,
Restitution,
International Council of Museums,
Norway,
United States,
Luxembourg,
Looted Art,
World War II,
St. Petersburg,
Poland,
beschlagnahmte Kunst,
Ukraine,
Austria,
Serbia,
Conference on Jewish Material Claims Against Germa,
Italy,
Bosnia,
New York Times,
Monika Grütters,
Slovenia,
Estonia,
Museum and Politics Conference,
National Gallery,
Museum of Fine Arts,
entzogogene Kunst,
Czech Republic
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.
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Topics:
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
Raising another hurdle to restitution claims, the U.S. District Court in Los Angeles against the Norton Simon Museum to the remnants of the famed Jacques Goudstikker collection, on the grounds that her case is preempted by the United States’ foreign affairs doctrine. In an unusually apologetic decision, the court ruled that regardless of the merits of her claims, the law of foreign affairs makes the dispute inappropriate for resolution by civil litigation.
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Topics:
Terezin Declaration,
Norton Simon Museum,
Hungary,
Thyssen-Bornemisza Collection,
Jacques Goudstikker,
Cassirer,
Hungarian National Gallery,
George Stroganoff-Scherbatoff,
Holocaust Victims Redress Act,
Restitution,
Marei Von Saher,
World War II,
Foreign Sovereign Immunities,
Lucas Cranach the Elder,
Rue St. Honoré,
Camille Pissarro,
Göring,
Soviet Union,
Washington Principles,
California Code of Civil Procedure 354.3
As discussed earlier in the Art Law Report, the Herzog heirs’ case against several Hungarian national museums survived dismissal (apart from their claims to 11 paintings whose ownership was litigated in Hungary previously). The remaining question was how much of the case would be heard on appeal: only the narrow question of Hungary’s sovereign immunity, or other parts of the decision on the defendants’ motion to dismiss (asserting, in part, that the claims were too old, that the claims were barred as acts of state, and that the United States is not the proper forum).
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Topics:
Hungary,
Restitution,
Statute of Limitations,
World War II,
Foreign Sovereign Immunities
With the recent decision in the Baron Herzog case dismissing some claims but allowing the bulk of the case to go forward, the next step is determining what issues can be appealed now.
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Topics:
Hungary,
Holocaust,
Restitution,
Statute of Limitations,
World War II,
Foreign Sovereign Immunities
The United States District Court has allowed significant parts of the claim brought by claimed heirs of Baron Mor Lipot Herzog to go forward. The decision is significant for several reasons. First, it is the most prominent restitution case currently at the trial level, and the case will now proceed into discovery of the facts. Second, the judge turned away a strong statute of limitations argument, which has been the strong trend in recent restitution cases. On the flip side, the judge found for the defendants on eleven paintings that were the subject of prior litigiation.
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Topics:
Hungary,
Holocaust,
Restitution,
Statute of Limitations,
World War II,
Foreign Sovereign Immunities
