U.S. Supreme Court to consider proper choice-of-law test in action involving a foreign sovereign entity

September 30, 2021

Media Relations Manager
Courtney DeMesme-Anders

Los Angeles, CA. Recently, without any comment on the merits decision of the case, the U.S. Supreme Court granted the petition for a writ of certiorari in Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566. The petition identifies a split of authority among the federal circuits as to the proper choice-of-law test to apply when the Foreign Sovereign Immunities Act permits a U.S. federal court to hear a case involving the agency or instrumentality of a foreign sovereign, here, the Kingdom of Spain. The Madrid-based Foundation, whose ownership of the Pissarro painting at issue was confirmed after a U.S. court trial, has acknowledged the split. But the split is of limited import in this action, as the district court considered both choice-of-law tests and recognized, in a lengthy decision, that both tests mandate the application of Spanish law. Examining only one of the two choice-of-law tests—the test applied for two decades in the Ninth Circuit—the appellate court affirmed the district court’s finding that Spanish law must apply.

In 2020, after conducting a full trial on the merits, the district court confirmed that, under Spanish law, the Foundation is the painting’s owner. The evidence demonstrated that in 1958, the German Government paid plaintiff’s predecessor, Lily Cassirer, her requested compensation (the then-fair market value of the painting) to compensate her for her loss. Thereafter, no further claims to the painting were pursued for more than 40 years. In 1993, the Foundation, after conducting a thorough review of Baron Heinrich Thyssen-Bornemisza’s internationally exhibited art collection, acquired the collection (which included the painting) for public display in Madrid. The district court also recognized that the Baron acquired the painting from a reputable gallery in 1976—for its then-fair market value—and shared the painting with the public in numerous international exhibitions and publications. The district court’s finding that the Foundation is the owner under Spanish law was unanimously affirmed by the U.S. Court of Appeals for the Ninth Circuit.

The petition does not assert that either court misapplied or misinterpreted Spanish law. Instead, it asserts that the appellate court erred in applying its longstanding choice-of-law test rather than the choice-of-law test adopted by other courts. At the conclusion of the case, regardless of which choice-of-law test is applied, the Foundation anticipates that its ownership of the painting—already recognized by the district court and the Ninth Circuit—will be affirmed.

The Nixon Peabody team consists of Thaddeus J. Stauber, partner and head of the firm’s Arts & Cultural Institutions team, and appellate partner Sarah Erickson André. Javier Martínez Bavière and Pedro Alemán Laín of Pedro Alemán Abogados in Madrid, Spain are the Foundation’s Spanish counsel.

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