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Rejecting the views of the Bush administration and several foreign governments, the U.S. Supreme Court ruled on June 7 that federal law allows Americans to sue other nations in U.S. courts for long-ago war crimes and other offenses. By a 6-to-3 vote, the Court gave the green light to Maria Altmann’s suit against the Austrian government to recover valuable paintings owned by her uncle that were expropriated after World War II. Justice John Paul Stevens, writing for the majority in Republic of Austria v. Altmann, said the Foreign Sovereign Immunities Act, which allows for certain civil suits against foreign governments, applies to conduct that occurred before the law’s passage in 1976. But Stevens emphasized the narrowness of the ruling, noting that the United States and foreign governments will still be able to argue in such cases that sovereign immunity should apply under other doctrines, or that the suits should fail because of statutes of limitations or treaty obligations. “Nothing in our holding prevents the State Department from filing statements of interest suggesting the courts decline to exercise jurisdiction in particular cases implicating foreign sovereign immunity,” wrote Stevens. But in dissent, Justice Anthony Kennedy warned that the decision “injects great prospective uncertainty into our relations with foreign sovereigns.” Kennedy, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, said traditional presumptions against the retroactivity of new laws should have prevailed. Scott Cooper of the New York firm Proskauer Rose, who represented Austria in the case, says, “There’s no question that we are disappointed in the outcome.” But, he added, “the Court majority plainly does not intend that this decision result in a lot of other cases.” The Altmann case drew wide interest not just because of international concern � briefs were filed by Mexico and Japan on Austria’s side � but also because of Altmann’s personal quest for six Gustav Klimt paintings valued at more than $150 million. An Austrian journalist discovered evidence in 1998 that the paintings and other works at the Austrian Gallery, the country’s national museum, had been seized by Nazis or expropriated by Austria after World War II. The paintings sought by Altmann, who fled Austria after the Nazis took power in 1938, had hung in the Vienna home of her uncle. They include a well-known portrait of Adele Bloch-Bauer, Altmann’s aunt. After filing suit four years ago, Altmann won at the district court level and before the U.S. Circuit Court of Appeals for the Ninth Circuit. In the majority opinion, Stevens reviewed Altmann’s saga as well as years of the Court’s retroactivity doctrine, concluding that there is “clear evidence that Congress intended the act to apply to preenactment conduct.” Emory University law professor David Bederman says the ruling may have more impact on the issue of retroactivity of federal laws than on international litigation. Bederman, who wrote an amicus brief in the case on behalf of Jewish legal organizations, says that a recent “cottage industry” of claims against Germany and Japan for World War II-era conduct had mostly been thwarted by existing treaties and other legal impediments, and would not be revived by the ruling. “I don’t see any significant impact on the volume of cases” resulting from the Court’s decision, says Bederman. But some cases are still pending � one filed by Holocaust survivors against French railroads, for example, and a suit by women claiming they had been enslaved by Japan � and may be affected by the decision.
A version of this story originally appeared in Legal Times, a sibling publication of Corporate Counsel.

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