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Just Another Art Restitution Case? Think again

By Todd Grabarsky

Spain may have achieved ultimate glory at this summer’s FIFA World Cup, but ended up on the losing end of a landmark Foreign Sovereign Immunity Act (FSIA) and art restitution decision out in the 9th Circuit.

The Federal Court of Appeals issued an en banc opinion on Cassirer v. Thyssen-Bornemisza yesterday. The basic facts are (unfortunately) common: a German-Jewish art collector acquired a beautiful piece of art (in this case Pissarro’s Rue Saint-Honoré, après-midi, effet de pluie) at the turn of the 20th Century where it remained within the family for 40 years. In the 1930s it was seized by German authorities under the program of “Arynaization” when the family attempted to flee Germany. After the war, the painting changed hands numerous times and eventually ended up in a state-sponsored museum in Spain. The heir to the original collector sued Spain and the museum.

What is indeed quite novel about the opinion was the decision’s allowing for the Foreign Sovereign Immunity Act’s Takings Exception to apply even though the foreign sovereign being sued (in this case Spain) was not the expropriator of the property. And this comes despite recent federal court hindrances to the FSIA Takings Exception (see Vatican Bank (9th Cir. 2005), Freund v. Republic of France (SDNY 2008))! For greater analysis check out this blog.