On October 4, Orkin v Swiss Confederation was heard at the court of appeals for the second circuit in downtown Manhattan.
Plaintiff Andrew Orkin’s great-grandmother, Margarethe Mauthner, had sold a work by Vincent Van Gogh to Swiss art collector Oskar Reinhart in 1933. Orkin claims that his Jewish great-grandmother sold the pen-and-ink drawing under duress, and at an artificially low price, in order to finance her family’s escape from Nazi Germany. He also claims that the painting ended up in the collection of the Museum Oskar Reinhart am Stadtgarten, an agent of the state. Orkin is now suing the Swiss Confederation to recover that work under the Foreign Sovereign Immunities Act [FSIA] and, alternatively, under the Alien Tort Statute [ATS].
The Plaintiff is Canadian and the Defendant is Swiss, so it’s not surprising that jurisdiction is been the main point of contention. If there had been a “taking” of the artwork, as per the FSIA, was it not by Oskar Reinhart, a private individual, rather than by the state? If the taking was by a private individual, how was it in violation of international law?
The Court of Appeal’s decision, particularly with regard to its interpretation of the FSIA, could have great implications for the art law and cultural property field. More individuals might be given the opportunity to recover works that were sold under similar circumstances during the Nazi era, where such works have ended up in state collections. No decision has been issued yet.