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Samuel Estreicher and Julian G. Ku Samuel Estreicher and Julian G. Ku

In Federal Republic of Germany v. Philipp, 141 S.Ct. 703 (2021), a unanimous U.S. Supreme Court, in an opinion by Chief Justice John Roberts, adopted a narrow reading of a Foreign Sovereign Immunities Act (FSIA)’s authorization of suits against foreign states “in which rights in property taken in violation of international law are in issue …” 28 U.S.C. §1605(3), to dismiss a claim brought by heirs of Jewish art dealers alleging expropriation of their valuable property by Nazi-era Germany. The decision holds that “rights of property taken in violation of international law” refers to international law principles as of the time of the FSIA’s enactment when a state’s taking of the property of its own nationals did not violate those principles rather than current international law where such claims would more likely be maintainable. The court’s strict interpretation of when international law would permit an exception to foreign sovereign immunity fits within a larger pattern of Supreme Court decisions restricting the ability of foreign plaintiffs to bring cases into U.S. courts that have little or no connection to the United States.

The case arose out of a dispute over certain German medieval relics known as the Welfenschatz. Heirs of a consortium of art dealers owned by Jewish German nationals alleged that the Nazi government used political persecution and political threats to force the sale of the relics at approximately one-third of their value. After the war, the new Federal Republic of Germany took possession of the relics and continues to display them today in a Berlin museum.

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